State ex rel. Counsel for Dis. v. Young

STATE EX REL. COUNSEL FOR DIS. v. YOUNG 	31
Cite as 285 Neb. 31
that the record is insufficient to adequately address on direct
appeal whether trial counsel’s failure to object denied Huston
the effective assistance of counsel. Accordingly, we affirm the
judgment of the district court.
A ffirmed.
StAte of NebrASkA ex rel. C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor,
v. dAvid JAmeS YouNg, reSpoNdeNt.
824 N.W.2d 745
Filed January 18, 2013. 	No. S-11-968.
Original action. Judgment of suspension.
heAviCAN, C.J., Wright, C oNNollY, StephAN, mCC ormACk,
miller-lermAN, and CASSel, JJ.
per C uriAm.
INTRODUCTION
Respondent, David James Young, was admitted to the prac-
tice of law in the State of Nebraska on September 14, 2010.
At all relevant times, he was engaged in the private practice of
law in Omaha, Nebraska. On December 14, 2011, respondent
was temporarily suspended. On April 17, 2012, the Counsel for
Discipline of the Nebraska Supreme Court filed formal charges
consisting of three counts against respondent. In the three
counts, it was alleged that by his conduct, respondent had vio-
lated his oath of office as an attorney, Neb. Rev. Stat. § 7-104
(Reissue 2007), and Neb. Ct. R. of Prof. Cond. §§ 3-501.8
(conflict of interest), 3-501.15 (safekeeping property), and
3-508.4 (misconduct).
On December 7, 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 a 20-month suspension retroactive
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

32 	285 NEBRASKA REPORTS
to the date of his temporary suspension, December 14, 2011,
and, following reinstatement, 2 years 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. The monitoring
plan shall include, but not be limited to, the following: During
the first 6 months of the probation, respondent will meet with
and provide the monitor 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, the last type
and date of work completed on file (pleading, correspondence,
document preparation, discovery, or court hearing), the next
type of work and date that work should be completed on the
case, any applicable statutes of limitations and their dates, and
the financial terms of the relationship (hourly, contingency, et
cetera). After the first 6 months through the end of the proba-
tion, respondent shall meet with the monitor on a monthly
basis and provide the monitor with a list containing the same
information as set forth above; respondent 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 with
the Counsel for Discipline, demonstrating that respondent is
adhering to the foregoing terms of probation. The quarterly
report shall include a certification by the monitor that the mon-
itor has reviewed the report and that respondent 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 20 months’ suspension retroactive to the date of his tem-
porary suspension, December 14, 2011, followed by 2 years
of probation “appears to be appropriate under the facts of this
case and will adequately protect the public.”

STATE EX REL. COUNSEL FOR DIS. v. YOUNG 	33
Cite as 285 Neb. 31
FACTS
Count I.
With respect to count I, the formal charges state that on
October 26 and 27, 2011, the Counsel for Discipline received
two grievance letters from attorney Kelly Shattuck, one of
respondent’s former employers. Respondent had been employed
as an associate attorney by the Vacanti, Shattuck law firm
from April 26 until October 11, 2011. During the course of
his employment, respondent agreed to represent a 19-year-old
woman who, on August 20, 2011, was ticketed for driving
under the influence and having an open container in a public
place. The client contacted respondent because they had for-
merly worked together and respondent had given her his busi-
ness card.
Also on August 20, 2011, the client signed a flat fee agree-
ment with the Vacanti, Shattuck firm, but the agreement did
not specify the amount of the fee. According to the client,
respondent advised her that the normal fee was $2,000, but that
respondent was going to charge her only $1,500.
The client paid respondent $750 by check on or about
August 21, 2011. Respondent deposited the check on August
22 into a bank account that was not the Vacanti, Shattuck
office trust account. The client paid the balance of $750 on or
about September 14 by check. It appears that on the following
day, that check was also deposited into the same bank account
where the initial $750 was deposited.
The criminal complaint regarding the client was not filed
with the county court until September 14, 2011. After accept-
ing the case, respondent did represent the client and was able
to negotiate a favorable plea agreement with the prosecutor.
Respondent also represented her interest in the administrative
license revocation proceedings and filed a subsequent appeal of
the revocation with the district court.
According to the formal charges, during the process of sev-
ering his employment from Vacanti, Shattuck, on October 14,
2011, respondent sent an e-mail to Shattuck stating:

34 	285 NEBRASKA REPORTS
“As for [the client], I have never charged anything because
it was supposed to just be simple as the city didn’t pros-
ecute it as a [driving under the influence]. However, the
[Department of Motor Vehicles] decided to charge for-
ward with the [administrative license revocation], compli-
cating matters. . . . Again, given that it was no charge and
she’s a friend, I’d probably keep the case and just deal
with the State if need be.”
After respondent left Vacanti, Shattuck, the client requested
that Shattuck, not respondent, complete her case for her.
During discussions between Shattuck and the client, Shattuck
learned that notwithstanding respondent’s e-mail of October
14, 2011, the client had in fact paid respondent $1,500 as
set forth above. At no time prior to leaving the employ of
Vacanti, Shattuck did respondent turn over the client’s fees to
the firm.
The formal charges allege that respondent’s actions con-
stitute a violation of his oath of office as an attorney as pro-
vided by § 7-104 and professional conduct rules §§ 3-501.15
and 3-508.4.
Count II.
With respect to count II, the formal charges state that in the
course of respondent’s representation of the client as set forth
above in count I, she came to respondent’s office after business
hours to sign and retrieve some papers. When the client entered
the office, she and respondent engaged in typical pleasantries
and then went into respondent’s private office to review docu-
ments. According to the client, at one point, respondent wanted
to show her a picture of a motorcycle on his computer screen
and directed her to come around behind the desk. According
to the formal charges, when the client came around the desk,
respondent pulled her down onto his lap and touched her in an
inappropriate manner. Shortly thereafter, respondent and the
client began exchanging personal text messages of an inap-
propriate nature.
The formal charges allege that respondent’s actions consti-
tute a violation of his oath of office as an attorney as provided
by § 7-104 and professional conduct rule § 3-508.4.

STATE EX REL. COUNSEL FOR DIS. v. YOUNG 	35
Cite as 285 Neb. 31
Count III.
With respect to count III, the formal charges state that
on July 26, 2011, during the course of his employment with
Vacanti, Shattuck, respondent represented another female client
at a custody hearing in Washington County, Nebraska, when
Shattuck, the client’s attorney of record, was unable to attend
the hearing. Thereafter, respondent began calling, e-mailing,
and text messaging the client. According to the formal charges,
the messages became “unprofessional including comments of
a sexual nature.” The client brought this to the attention of
Shattuck after respondent left the firm. According to the client,
she and respondent never actually engaged in any intimate acts.
When respondent left the employment of Vacanti, Shattuck,
the client asked that someone other than respondent work on
her case.
The formal charges allege that respondent’s actions con-
stitute a violation of his oath of office as an attorney as pro-
vided by § 7-104 and professional conduct rules §§ 3-501.8
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 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

36 	285 NEBRASKA REPORTS
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
determine that by his conduct, respondent violated conduct
rules §§ 3-501.8, 3-501.15, 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,
the court approves the conditional admission and enters the
orders as indicated below.
CONCLUSION
Respondent is suspended from the practice of law for a
period of 20 months retroactive to the date of his temporary
suspension, December 14, 2011. Should respondent apply for
reinstatement, his reinstatement shall be conditioned upon
respondent’s being on probation for a period of 2 years,
including monitoring following reinstatement, subject to the
terms of probation 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.