State ex rel. Counsel for Dis. v. Jorgenson

STATE EX REL. COUNSEL FOR DIS. v. JORGENSON 	507
Cite as 284 Neb. 507
the proper sentence for the weapons conviction differently
than the original sentencing judge. The possibility of a higher
sentence is a legitimate risk of resentencing33 and is a natural
consequence when judges are allowed to use their discretion in
sentencing.34 Therefore, we conclude that Miller has failed to
meet his burden of proving actual vindictiveness by the second
district court judge.
CONCLUSION
[12] We conclude that the vindictiveness presumption does
not apply when a judge, different from the original sentenc-
ing judge, sentences a defendant to a harsher sentence after
a successful appeal. Furthermore, we reject Miller’s conten-
tion that the second district court judge acted with actual
vindictiveness.
A ffirmed.
33 Chaffin v. Stynchcombe, supra note 10.
34 State v. Bruna, supra note 2.
StAte of NebrASkA ex rel. C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor, v.
Jeremy C. JorgeNSoN, reSpoNdeNt.
822 N.W.2d 367
Filed October 12, 2012. 	No. S-12-269.
Original action. Judgment of public reprimand.
heAviCAN, C.J., Wright, C oNNolly, StephAN, mCC ormACk,
miller‑lermAN, and CASSel, JJ.
per C uriAm.
INTRODUCTION
Respondent, Jeremy C. Jorgenson, was admitted to the
practice of law in the State of Nebraska on April 15, 2008.
At all relevant times, he was engaged in the private prac-
tice of law in Omaha, Nebraska. On April 3, 2012, the
Counsel for Discipline of the Nebraska Supreme Court filed
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

508 	284 NEBRASKA REPORTS
formal charges consisting of three counts against respond-
ent. In the three counts, it was alleged that by his conduct,
respondent had violated his oath of office as an attorney, Neb.
Rev. Stat. § 7-104 (Reissue 2007), and Neb. Ct. R. of Prof.
Cond. §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.5
(fees), 3-501.16 (declining or terminating representation), and
3-508.4 (misconduct).
On September 17, 2012, respondent filed a conditional
admission pursuant to Neb. Ct. R. § 3-313 of the disciplinary
rules, in which he knowingly chose not to challenge or contest
the truth of the matters set forth in the formal charges and
waived all proceedings against him in connection therewith
in exchange for a judgment of public reprimand and 1 year of
probation, including monitoring. If accepted, the monitoring
shall be by an attorney licensed to practice law in the State
of Nebraska and who shall be approved by the Counsel for
Discipline. Respondent shall provide the name of the monitor
within 30 days of this order. The monitoring plan shall include,
but not be limited to, the following: During the first 6 months
of probation, respondent will meet with and provide the moni-
tor a weekly list of cases for which respondent is currently
responsible, which list shall include the date the attorney-client
relationship began, the general type of case, the date of last
contact with the client, last type and date of work completed
on file (pleading, correspondence, document preparation, dis-
covery, court hearing), the next type of work and date that
work should be completed on the case, any applicable statutes
of limitation and their dates, and the financial terms of the
relationship (hourly, contingency, et cetera), and respondent
shall provide the monitor with copies of all fee agreements
entered into during the previous week. After the first 6 months
through the end of the probation, respondent shall meet with
the monitor on a monthly basis and provide the monitor with a
list containing the same information set forth above; respond-
ent shall reconcile his trust account within 10 days of receipt
of the monthly bank statement and provide the monitor with
a copy within 5 days; and respondent shall submit a quarterly
compliance report to the Counsel for Discipline demonstrating
that respondent is adhering to the foregoing terms of probation.

STATE EX REL. COUNSEL FOR DIS. v. JORGENSON 	509
Cite as 284 Neb. 507
The quarterly report shall include a certification by the moni-
tor that the monitor has reviewed the report and that respond-
ent continues to abide by the terms of the probation. Finally,
respondent shall pay all the costs in this case, including the
fees and expenses of the monitor, if any.
The proposed conditional admission included a declaration
by the Counsel for Discipline, stating that respondent’s request
for public reprimand and the proposed probation plan “appears
to be appropriate under the facts of this case.”
Upon due consideration, we approve the conditional admis-
sion, and we order a public reprimand and 1 year of probation
and monitoring.
FACTS
Count I.
With respect to count I, the formal charges state that in
November 2008, Gabriel Albanese, with the assistance of
counsel other than respondent, filed suit against an individual
in the district court for Douglas County seeking to recover
damages for injuries that he received in an automobile accident
in December 2004. On June 16, 2009, Albanese was indicted
for selling methamphetamine. Albanese entered a guilty plea,
was sentenced to 37 months in prison, and began serving his
sentence on May 27, 2010.
During the summer of 2010, respondent had discussions
with Albanese’s brother and a friend, John Blaiotta, who had
introduced Albanese to respondent, regarding the possibility of
respondent’s representing Albanese in the personal injury case
set forth above and a wrongful employment termination case.
Respondent obtained the files from Albanese’s former counsel
on or before September 3, 2010.
On 	September 	3, 	2010, 	respondent 	wrote 	to Albanese
to advise him that respondent had been unable to contact
Albanese by telephone and that respondent did not intend to
represent Albanese until they had the opportunity to speak.
The September 3 communication further advised Albanese
that a deposition in the personal injury case was scheduled for
September 9 and that it would be necessary for Albanese to
make arrangements with the prison for Albanese to participate

510 	284 NEBRASKA REPORTS
by telephone. On September 9, respondent did attend the
scheduled deposition, but Albanese did not participate.
On September 23, 2010, respondent sent a letter to Albanese
advising Albanese that respondent was concerned because he
had not received any communications from Albanese directly.
The letter further advised that the defendant in the personal
injury case had filed a motion to dismiss based upon Albanese’s
repeated failure to attend his scheduled depositions. The letter
further stated that respondent would like some sort of retainer
before delving into the files.
A hearing on the motion to dismiss was conducted on
October 4, 2010, and respondent did not resist the motion nor
attend the hearing. The personal injury case was dismissed
on October 4. The formal charges state that a cursory review
of the pleadings would have put respondent on notice that if
the motion to dismiss was granted, Albanese’s personal injury
claim would be barred by the statute of limitations.
On October 5, 2010, respondent entered an agreement with
Albanese’s brother as power of attorney for Albanese to rep-
resent Albanese on both the personal injury claim and the
wrongful termination claim. The agreement called for a $1,500
nonrefundable retainer to investigate both cases in addition to
a one-third contingency fee of any sums collected. The formal
charges state that by October 5, respondent knew, or with mini-
mal review of the pleadings should have known, that the per-
sonal injury claim was now barred by the statute of limitations
and that, therefore, there was nothing to investigate regarding
the personal injury case. The formal charges further state that
even a cursory review of the wrongful termination claim by
a competent attorney would have likewise disclosed that the
statute of limitations had long passed by the time respondent
received the file.
The formal charges allege that respondent’s actions consti-
tute violations of his oath of office as an attorney as provided
by § 7-104 and professional conduct rules §§ 3-501.1, 3-501.3,
3-501.5, 3-501.16, and 3-508.4.
Count II.
With respect to count II, the formal charges state that on
or about December 30, 2009, Blaiotta (the friend mentioned

STATE EX REL. COUNSEL FOR DIS. v. JORGENSON 	511
Cite as 284 Neb. 507
in count I) was injured in an automobile and motorcycle acci-
dent in San Francisco, California. Shortly thereafter, Blaiotta
hired respondent to represent him regarding his claims for
damages, both personal injury and property damage. At the
time of hiring respondent, Blaiotta knew that respondent was
not admitted to practice law in California and that respondent
would have to associate with a California attorney or seek
admission to the California Bar, which could be a costly and
timely proposition.
The agreement between Blaiotta and respondent was not
committed to writing, and the exact terms are unclear. However,
it is agreed that respondent was doing the work on a contin-
gency fee basis. A settlement was reached. It is the portion of
the settlement that respondent would be entitled to as his fee
that is in dispute. Further, there was nothing in writing as to
how costs would be paid or reimbursed.
With respect to respondent’s handling of the engagement,
he began investigating Bliaotta’s claim and contacting various
insurance carriers in attempts to settle the matter. Over the next
year, respondent was corresponding with various insurance
companies. The other driver in the accident had the statutory
minimum coverage, which did not cover Blaiotta’s damages,
so, at the urging of Blaiotta, respondent was seeking out other
possible issuers that could be liable for the loss, including the
other driver’s parents’ insurer even though the driver was not
on their policy.
During 2010, respondent, Blaiotta, and Blaiotta’s wife trav-
eled together to San Francisco. Their trip was partly for pleas-
ure and partly for examining the scene of the accident.
Blaiotta was not happy with the way negotiations were
going with the insurance companies or with his inability to
contact respondent whenever he wanted. After some disputes
regarding the Blaiotta matter and other matters that had
been referred to respondent by Blaiotta, respondent withdrew
from representing Blaiotta on January 25, 2011. At the time
respondent withdrew, Blaiotta still had roughly 11 months
to file suit under California law. Respondent had previously
forwarded the Blaiotta file to California counsel at Blaiotta’s
direction.

512 	284 NEBRASKA REPORTS
The formal charges allege that respondent’s actions consti-
tute violations of his oath of office as an attorney as provided
by § 7-104 and professional conduct rule § 3-501.5.
Count III.
With respect to count III, the formal charges state that, as
stated above, Blaiotta referred a number of other clients to
respondent. One of these clients was Chelsey Foulk, who was
injured in a motor vehicle accident. The respondent agreed to
represent Foulk, commenced investigation of her claim, and
began negotiations with the insurance companies. There was
never a written fee agreement between Foulk and respondent,
although it was understood that respondent was working on
a contingency fee basis. Eventually, Foulk and her boyfriend
became dissatisfied with respondent’s efforts and terminated
his services.
The formal charges allege that respondent’s actions consti-
tute violations of his oath of office as an attorney as provided
by § 7-104 and professional conduct rule § 3-501.5.
ANALYSIS
Section 3-313, which is a component of our rules govern-
ing procedures regarding attorney discipline, provides in per-
tinent 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 determined 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 con-
ditional admission shall include a written statement that
the Respondent knowingly admits or knowingly does
not challenge or contest the truth of the matter or mat-
ters conditionally admitted and waives all proceedings
against him or her in connection therewith. If a tendered
conditional admission is not finally approved as above

STATE EX REL. COUNSEL FOR DIS. v. JORGENSON 	513
Cite as 284 Neb. 507
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 matters set forth in the formal charges. We further
determine that by his conduct with respect to count I, respond-
ent violated professional conduct rules §§ 3-501.1, 3-501.3,
3-501.5, 3-501.16, and 3-508.4, as well as his oath of office as
an attorney licensed to practice law in the State of Nebraska.
We further determine that by his conduct with respect to counts
II and III of the formal charges, respondent violated profes-
sional conduct rule § 3-501.5, as well as his oath of office as
an attorney. Respondent has waived all additional proceedings
against him in connection herewith. Upon due consideration,
the court approves the conditional admission and enters the
orders as indicated below.
CONCLUSION
Respondent is publicly reprimanded and is placed on pro-
bation for a period of 1 year, including monitoring subject to
the terms agreed to by respondent in the conditional admis-
sion and outlined above. Respondent is directed to pay costs
and expenses in accordance with 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 publiC reprimANd.