State ex rel. Counsel for Dis. v. Phillips

940 	284 NEBRASKA REPORTS
a hearing and may order the record sealed if it makes find-
ings that the juvenile has been “rehabilitated to a satisfactory
degree.”13 In this case, the juvenile court’s order requiring the
record to be sealed recites that no objections were received, but
there is no indication in the order or elsewhere in the record
that the county attorney was ever given the required notice of
the proceeding to seal the record.
Accordingly, we conclude that the juvenile court erred in
ordering that the record be sealed, because (1) the order did not
include a finding that the juvenile had satisfactorily completed
her probation and (2) the county attorney was not given the
required notice of the proceeding to seal the record. We there-
fore vacate the order sealing Candice’s juvenile record.
O rder vacated.
13 § 43-2,108.04(4) and (5).
State Of NebraSka ex rel. cOuNSel fOr diScipliNe
Of the NebraSka Supreme cOurt, relatOr,
v. JOel W. phillipS, reSpONdeNt.
824 N.W.2d 376
Filed December 21, 2012. 	No. S-12-481.
Original action. Judgment of public reprimand.
heavicaN, c.J., Wright, cONNOlly, StephaN, mccOrmack,
miller-lermaN, and caSSel, JJ.
per curiam.
INTRODUCTION
Respondent, Joel W. Phillips, was admitted to the practice
of law in the State of Nebraska on September 28, 1995. At
all relevant times, he was engaged in the private practice of
law in Wallace, Nebraska. On May 31, 2012, the Counsel for
Discipline of the Nebraska Supreme Court filed formal charges
consisting of one count against respondent. In the one count,
it was alleged that by his conduct, respondent had violated his
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE EX REL. COUNSEL FOR DIS. v. PHILLIPS 	941
Cite as 284 Neb. 940
oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue
2007), and Neb. Ct. R. of Prof. Cond. §§ 3-501.4 (communica-
tions), 3-501.5 (fees), 3-508.1 (bar admission and disciplinary
matters), and 3-508.4 (misconduct).
On November 6, 2012, respondent filed a conditional admis-
sion 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. Further, respondent agreed
to pay all the costs in this case, including the fees and expenses
of the referee, if any. Finally, respondent agreed to be enjoined
from engaging in any act that would violate the Nebraska Real
Estate License Act, Neb. Rev. Stat. §§ 81-885.01 to 81-885.55
(Reissue 2008 & Supp. 2009).
The proposed conditional admission included a declaration
by the Counsel for Discipline, stating that respondent’s request
for public reprimand is appropriate.
Upon due consideration, we approve the conditional admis-
sion and order that respondent be publicly reprimanded.
FACTS
The formal charges state that on November 28, 1988, Herbert
Hasenauer created a revocable trust. The primary asset of the
trust was farm ground located in Lincoln County, Nebraska.
Upon the death of both Herbert and his wife, Eunice Hasenauer,
the assets of the trust were to be managed for a period of 4
years, with the net income to be distributed to Herbert’s four
children: Verlaine M. Weir, Herbert C. Hasenauer (Clinton),
Eunice J. Kilgore, and Leonard E. Hasenauer. The four chil-
dren were named as the ultimate equal beneficiaries upon the
termination of the trust.
On October 24, 2001, Herbert amended the trust to make it
an irrevocable trust. Herbert designated his son Clinton and his
wife, Eunice, as cotrustees.
On August 28, 2002, Herbert died and was survived by his
wife, Eunice. From that point forward, the trust property was
held and used for the benefit of Eunice. On May 15, 2008,
Eunice died. Clinton continued to serve as trustee of the trust.

942 	284 NEBRASKA REPORTS
Pursuant to the trust, Clinton as trustee was to continue to
manage the trust for 4 years from the date of Eunice’s death.
At the end of the 4 years, for 60 days, Clinton was to have
the option to purchase the real property at a price agreeable
to the majority of the adult beneficiaries of the trust. If the
beneficiaries of the trust could not agree on the price, then
the price was to be determined by arbitration. If Clinton did
not then exercise his option to purchase the real property at
the arbitration price, the real property was to be sold at public
or private sale on terms satisfactory to the trustee, considered
with regard to the best interests of all the beneficiaries. Once
the real property was sold and converted to cash, the trust was
to be dissolved, with each beneficiary receiving an equal one-
fourth distribution.
Prior to the expiration of the 4-year waiting period, the
four siblings decided to terminate the trust and distribute the
real property, which consisted of five separate parcels. It was
agreed that Clinton would receive parcels 2, 4, and 5 at agreed-
upon values and that the other three siblings would receive
parcels 1 and 3, which were to be sold to third parties. Clinton
would make a cash payment to his siblings so that the final
distribution resulted in each sibling receiving one-fourth of the
total value of the trust property.
In or about December 2009, Clinton contacted LaVern
Friesen about purchasing parcels 1 and 3. Friesen and Clinton
entered into an oral agreement whereby they would each obtain
appraisals for parcels 1 and 3, and the purchase price would be
the average of the two appraisals. After Friesen’s appraisal was
low, $325,000, Clinton decided to seek other offers.
The formal charges state that respondent was a long-time
friend of the Hasenauer family, and Clinton’s family in par-
ticular. Clinton spoke to respondent about the sale of the
property to Friesen. Respondent assured Clinton that he had
buyers available who would pay more than $325,000 per
parcel. Although respondent was licensed to practice law in
Nebraska, he was not a licensed real estate broker, associate
broker, or salesperson as defined by the Nebraska Real Estate
License Act.

STATE EX REL. COUNSEL FOR DIS. v. PHILLIPS 	943
Cite as 284 Neb. 940
On February 8, 2010, based upon his discussions with
Clinton, respondent sent a solicitation letter to Clinton and his
wife, Mary Hasenauer, asking to be hired to find purchasers
for one of the parcels owned by the trust and another quarter
section of land not owned by the trust, and to perform legal
services ancillary thereto. According to the formal charges,
respondent’s letter further stated, in part:
“Please note, I have proposed to do these sales on a com-
mission basis as set forth in the agreement. Critically,
this means I find the buyer, handle all negotiations, assist
the buyer if necessary in obtaining financing, draw up
all contracts and instrument[s] and in short, represent
you fully.
“As you and [Friesen] have already reached a tenta-
tive agreement on the NE1/4 of 14-9-34, [parcel 3] I will
be acting as your attorney only and bill my hourly rate.
However, if the two of you do not reach a final agree-
ment I would be willing to waive my bill in exchange for
you allowing me to sell the ground under the same terms
as the two parcels listed in the enclosed representation
agreement. Again, I am confident that I can sell this land
at a price very favorable to you.”
The agreement referenced in respondent’s letter is entitled
“Retention Letter.”
The retention letter states that the agreement is between
Clinton and Mary, husband and wife, as clients and the Phillips
Law Office as attorneys. According to the formal charges, the
agreement states in part:
“Client hereby retains Attorneys to represent [the cli-
ent] exclusively with the sale of certain agricultural par-
cels owned by the client. Said parcels legally described
as follows:
“1. [NE1/4, 30-10-34] Lincoln County Nebraska. [not
owned by the Trust]
“2. [SE1/4, 29-9-33] Lincoln County, Nebraska. [Parcel
3 of the Trust]
“Attorneys shall receive as compensation for said rep-
resentation the sum of 5.5% of the gross sale. Attorneys

944 	284 NEBRASKA REPORTS
shall be responsible for locating potential buyer(s), nego-
tiating with said buyer(s), the preparation of the purchase
contract(s), deed(s) and Form(s) 521 . . . .”
At the time respondent sent the solicitation letter and the
retention letter to Clinton and Mary, item No. 1 listed in the
retention letter, “NE1/4, 30-10-34,” was not owned by the
trust. At the time respondent sent the solicitation letter and
the retention letter to Clinton and Mary, item No. 2 listed in
the retention letter, “Parcel 3 of the Trust,” was owned by the
trust for which Clinton was the trustee. Since parcel 3 was
owned by the trust, Clinton and Mary had no right to sell par-
cel 3 in their individual capacities.
The retention letter further stated:
“Client expressly agrees that this agreement shall con-
stitute an exclusive right to sell said land granted to the
Attorneys. Client agrees that they shall enter into no other
agreement granting a right to sell or enter into any agree-
ment to sell said land, other than as presented to the Client
by the Attorneys for the term of this agreement. The term
of this exclusive right to sell shall be for a period of six
(6) months from the date of this agreement. If the land
has not sold within said time the Client and Attorneys
may mutually agree to an extension of this agreement for
an additional term of six (6) months by executing a writ-
ten addendum to this agreement.
“Listing Price: Client agrees to sell the parcels of land
and have authorized Attorneys to accept any offer to pur-
chase for the following price[s]:
“1. NE1/4 30-10-34 	$500,000
“2. SE1/4 29-9-33 	$500,000
“Attorneys agrees (sic) to submit all other offers to the
Client for [the Client’s] approval.”
On February 12, 2010, Clinton and his three siblings met
with respondent at respondent’s office to discuss the dissolu-
tion of the trust. Respondent was informed of the siblings’
plan to distribute the five parcels held in the trust as set forth
above. At that time, respondent told the four siblings that
he had potential buyers willing to pay between $400,000 to
$500,000 per parcel, which was greater than the $325,000 that

STATE EX REL. COUNSEL FOR DIS. v. PHILLIPS 	945
Cite as 284 Neb. 940
had been offered by Friesen. Based upon respondent’s assur-
ance that he had buyers in hand willing to pay substantially
more than Friesen, the four siblings agreed that respondent
could arrange the sales and be paid a commission of 5 percent,
rather than the 5.5 percent offered by respondent. On March 2,
Clinton and Mary signed the retention letter in their personal
capacity after reducing the compensation amount to 5 percent
of the gross sale.
Respondent claims that he contacted several potential buyers
for the real estate and received several offers which he claims
were relayed to Clinton. Respondent claims that on March 12,
2010, he advised Clinton of offers from a “Mr. Clough” and a
“Mr. Kuhlman.” Clough allegedly offered to purchase the land
for $425,000 per parcel. Kuhlman offered to purchase parcel 1
for $325,000 and parcel 3 for $375,000. None of those offers
were submitted to Clinton in writing.
Clinton denies that respondent provided him with any offers.
By March 15, 2010, no written offers had been received by
Clinton from respondent. However, Friesen and Clint Sheets,
a man hired by Friesen, directly offered to Clinton to purchase
one parcel each for $355,000 per parcel.
Clinton notified respondent of these offers and directed
respondent to prepare the purchase agreements for Friesen to
purchase parcel 3 and Sheets to purchase parcel 1. Friesen
signed the purchase agreement on March 15, 2010, and Sheets
signed the purchase agreement on March 16. Closing of the
sales of the real estate to Friesen and Sheets were to be held
on April 22.
Prior to closing, parcels 1 and 3 of the trust were transferred
to Leonard, Verlaine, and Kilgore, pursuant to a written agree-
ment, drafted by counsel other than respondent, between the
four siblings to dissolve the trust and to distribute the trust
property. Parcels 1 and 3 were then sold by the three siblings
personally to Sheets and Friesen, respectively. Respondent
did not have a written or oral fee agreement with Leonard,
Verlaine, and Kilgore for the sale of parcels 1 and 3 prior to the
closing on April 22, 2010.
At the closing on April 22, 2010, respondent insisted that
he receive a commission of 5 percent of the gross sale price

946 	284 NEBRASKA REPORTS
on each parcel, totaling $35,500. Leonard objected to these
fees, because Friesen had already offered to purchase the real
estate prior to respondent’s involvement in the matter and
because Sheets was brought into the negotiations by Friesen,
not respondent.
Respondent insisted that his fees be withheld from the sale
proceeds; otherwise, the sale would not close. Under duress,
Leonard, Verlaine, and Kilgore signed the settlement state-
ments allocating the 5-percent commissions to respondent on
both sales.
After the closing and receipt by respondent of the 5-percent
commissions, 	respondent 	received 	correspondence 	from
Leonard, and later from Leonard and Clinton’s attorney,
objecting to the fees respondent received. Respondent was
asked to provide an itemized accounting of the time he put
into the real estate matter regarding the trust. Respondent
refused to do so.
On September 21, 2010, Clinton, Leonard, Verlaine, and
Kilgore filed a grievance against respondent regarding the
fees he collected from the sale of the trust property. In his
September 30 response to the grievance, respondent asserted
that his “contingency fee” of 5 percent was reasonable, because
brokers typically charge a commission of 6 to 7 percent for the
sale of real estate.
On November 16, 2010, the Assistant Counsel for Discipline
sent a letter to respondent asking him to provide an item-
ized statement of his time working on the Hasenauer trust
real estate matters. Respondent was also asked to provide
detailed information of all offers he received for the purchase
of the real property owned by the trust. In his November 30
response, respondent provided a partial itemized statement of
his time; however, respondent refused to provide the names
of the potential buyers he contacted on behalf of Clinton.
Respondent asserted that Clinton was not entitled to his “buy-
ers list.”
On December 9, 2010, the Assistant Counsel for Discipline
sent a letter to respondent stating that respondent had a duty
to provide to his client Clinton a detailed statement of all
offers made for the trust property. After retaining counsel,

STATE EX REL. COUNSEL FOR DIS. v. PHILLIPS 	947
Cite as 284 Neb. 940
respondent provided the requested information on January
6, 2011.
Section 	81-885.02 	of 	the 	Nebraska 	Revised 	Statutes
provides:
After September 2, 1973, it shall be unlawful for any
person, directly or indirectly, to engage in or conduct, or
to advertise or hold himself or herself out as engaging
in or conducting the business, or acting in the capacity,
of a real estate broker, associate broker, or real estate
salesperson within this state without first obtaining a
license as such broker, associate broker, or salesperson, as
provided in the Nebraska Real Estate License Act, unless
he or she is exempted from obtaining a license under sec-
tion 81-885.04.
Respondent does not fit within § 81-885.04, which provides:
Except as to the requirements with respect to the subdi-
vision of land, the Nebraska Real Estate License Act shall
not apply to:
(1) Any person, partnership, limited liability company,
or corporation who as owner or lessor shall perform
any of the acts described in subdivision (2) of section
81-885.01 with reference to property owned or leased
by him, her, or it or to the regular employees thereof,
with respect to the property so owned or leased, when
such acts are performed in the regular course of or as
an incident to the management, sale, or other disposi-
tion of such property and the investment therein, except
that such regular employees shall not perform any of the
acts described in such subdivision in connection with a
vocation of selling or leasing any real estate or improve-
ments thereon;
(2) Any attorney in fact under a duly executed power
of attorney to convey real estate from the owner or les-
sor or the services rendered by any attorney at law in the
performance of his or her duty as such attorney at law;
(3) Any person acting as receiver, trustee in bank-
ruptcy, personal representative, conservator, or guardian
or while acting under a court order or under the authority
of a will or of a trust instrument or as a witness in any

948 	284 NEBRASKA REPORTS
judicial proceeding or other proceeding conducted by the
state or any governmental subdivision or agency;
(4) Any person acting as the resident manager of an
apartment building, duplex, apartment complex, or court,
when such resident manager resides on the premises
and is engaged in the leasing of property in connection
with his or her employment, or any employee, parent,
child, brother, or sister of the owner or any employee of
a licensed broker who manages rental property for the
owner of such property;
(5) Any officer or employee of a federal agency in the
conduct of his or her official duties;
(6) Any officer or employee of the state government
or any political subdivision thereof performing his or her
official duties for real estate tax purposes or perform-
ing his or her official duties related to the acquisition of
any interest in real property when the interest is being
acquired for a public purpose;
(7) Any person or any employee thereof who renders
an estimate or opinion of value of real estate or any inter-
est therein when such estimate or opinion of value is for
the purpose of real estate taxation; or
(8) Any person who, for himself or herself or for
others, purchases or sells oil, gas, or mineral leases or
performs any activities related to the purchase or sale of
such leases.
Section 81-885.45 provides: “Any person or subdivider act-
ing as a broker, salesperson, or subdivider without having first
obtained the required license or subdivision certificate or while
his or her license or subdivision certificate is under suspension
shall be guilty of a Class II misdemeanor.”
The formal charges allege that it was a violation of the fore-
going statutes for respondent to charge a commission to broker
the sale of the trust property because he was not authorized
to do so under the Nebraska Real Estate License At. As such,
the formal charges allege that respondent was to be directed
to disgorge the entire $35,000 fee he received. The record

STATE EX REL. COUNSEL FOR DIS. v. PHILLIPS 	949
Cite as 284 Neb. 940
reflects that these funds have been returned or otherwise
accounted for.
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 §§ 3-501.4, 3-501.5,
3-508.1, and 3-508.4.
ANALYSIS
Section 3-313, which is a component of our rules governing
procedures regarding attorney discipline, provides in perti-
nent 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
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 deter-
mine that by his conduct, respondent violated conduct rules
§§ 3-501.4, 3-501.5, 3-508.1, and 3-508.4, 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 connection herewith. Upon due consideration,

950 	284 NEBRASKA REPORTS
the court approves the conditional admission and enters the
orders as indicated below.
CONCLUSION
Respondent 	is 	publicly 	reprimanded. 	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.