State ex rel. Counsel for Dis v. Peters

Those circumstances are the employer’s obligation to pay claims
(1) upon the employee’s notification of a disability before an
adjudication or (2) after a final adjudicated award is entered.
The “final adjudicated award” circumstance is now subsumed
in the amendment’s added language. Thus, the “after thirty
days’ notice” language only applies to an employer’s failure to
timely pay benefits pending trial. We conclude that the 1999
amendment simply made § 48-125 consistent with our hold-
ing in Leitz and did not authorize the Workers’ Compensation
Court to impose waiting-time penalties absent a final adjudica-
tion when a party appeals. We affirm.
A ffirmed.
StAte of NebrASkA ex rel . C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor , v.
WilliAm C. peterS, Jr ., reSpoNdeNt.
762 N.W.2d 294
Filed March 13, 2009. 	Nos. S-07-517, S-07-960.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Appeal and Error. In attorney discipline and admis-
sion cases, the Nebraska Supreme Court reviews recommendations de novo on
the record, reaching a conclusion independent of the referee’s findings. When
credible evidence is in conflict on material issues of fact, however, the court
considers and may give weight to the fact that the referee heard and observed the
witnesses and accepted one version of the facts rather than another.
3. Evidence: Proof: Words and Phrases. Clear and convincing evidence is that
amount of evidence which produces in the trier of fact a firm belief or conviction
about the existence of a fact to be proved.
4. Evidence: Words and Phrases. Clear and convincing evidence means more than
a preponderance but less than evidence beyond a reasonable doubt.
5. Disciplinary Proceedings. Cumulative acts of attorney misconduct are distin-
guishable from isolated incidents, therefore justifying more serious sanctions.
6. ____. In evaluating attorney discipline cases, the Nebraska Supreme Court con-
siders aggravating and mitigating circumstances, the attorney’s conduct underly-
ing the charges and throughout the proceeding, and the propriety of a sanction
with the sanctions imposed in similar cases.
7. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances.
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	343
Cite as 277 Neb. 343
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

original actions. Judgment of suspension.
Kent 	l. 	Frobish, Assistant 	Counsel 	for 	discipline, 	for
relator.
Maren lynn Chaloupka and robert paul Chaloupka, of
Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, for
respondent.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
per C uriAm.
I. NATurE oF CASE
The Counsel for discipline of the Nebraska Supreme Court
brought formal charges against William C. peters, Jr., a mem-
ber of the Nebraska State Bar Association. The formal charges
alleged that peters violated certain disciplinary rules and his
oath of office as an attorney. The charges were filed in two
separate cases that have been consolidated.
peters was found by a court-appointed referee to have vio-
lated sections of the Code of professional responsibility and
the Nebraska rules of professional Conduct. The referee rec-
ommended that peters’ license to practice law be suspended for
60 days and that upon reinstatement, he be required to engage
an attorney to monitor his practice for 1 year at his own cost.
The Counsel for discipline filed exceptions to the recom-
mended sanction as being too lenient. peters also filed excep-
tions to the referee’s report.
II. FACTS
1. Julie A. SChmuNk
The formal charges against peters in case No. S-07-517
allege that he was hired by Julie A. Schmunk, formerly known
as Julie A. Wyatt (Julie), to represent her in a dissolution of
marriage case. Kerry Wyatt (Kerry), Julie’s husband at the
time, was not represented by separate counsel. Kerry and Julie
reached an amicable settlement of all issues and signed a prop-
erty settlement agreement prepared by peters, and a decree was
entered on August 17, 2004.
344 	277 NEBrASKA rEporTS

one asset of the parties was a Thrift Savings plan (TSp)
account containing approximately $40,000 that was in Kerry’s
name only. In order to liquidate the account without a pen-
alty, the account had to be awarded to Julie as part of the
divorce decree. When the decree of dissolution and property
agreement were submitted to the TSp finance center for dis-
bursement, the administrators of the plan determined that the
decree was sufficient to award a one-half share of the account
to Julie, and that amount was paid to her in december 2004.
However, the administrators determined that the decree was
not properly worded to allow for disbursement of the other
half of the account, and Kerry and Julie were notified of
the problem.
In a letter to the Counsel for discipline, Kerry stated that
he had explained to peters that he had both a survivors bene-
fit plan and a TSp account and claimed that he had provided
all the information peters would need to prepare the divorce
decree and property settlement. Kerry said peters knew of the
problem with the TSp account payment in the fourth quarter
of 2004. After Kerry learned that the wording in the divorce
decree would not allow the second payment from the TSp
account, he contacted peters, who agreed to work on the
problem. Kerry said that he continued to contact peters by
fax, telephone, and e-mail and that he provided peters with
the contact information for the TSp legal department on sev-
eral occasions.
Julie also told peters in June 2005 that the decree did not
contain the correct legal language in order to allow disburse-
ment of the second payment. As time passed, peters continued
to assure Julie that he was working to resolve the issue. The
second payment from the TSp account was not processed until
November 8, 2006.
peters said that after Julie contacted him about the second
payment, he advised her that she was not entitled to additional
moneys from Kerry’s retirement plan until he retired and that
the date of his retirement would be determined in the future.
peters told the Counsel for discipline that he believed Julie
was going to follow up on the TSp account herself.
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	345
Cite as 277 Neb. 343

The formal charges alleged that between January 2005 and
May 2006, Kerry and Julie repeatedly contacted peters to ask
him to take the necessary steps to correct the problem with
the decree. Julie filed a grievance against peters with the
Counsel for discipline on June 8, 2006, alleging that peters
had neglected to complete the representation for which he had
been paid and had failed to take the necessary steps to correct
the decree so the TSp account could be disbursed. peters did
not respond when he received a copy of the grievance letter,
and the Counsel for discipline sent a second letter on July 12.
peters responded on July 21, but he did not address the TSp
account issue.
Kerry, who was unaware that Julie had filed a grievance,
contacted peters on July 25, 2006, to ask again about com-
pleting the necessary steps to get the TSp account released to
Julie. peters drafted a stipulation and a proposed order, which
Kerry signed. An amended order intended to comply with TSp
requirements was signed by the court on September 15. on
September 29, TSp administrators directed payment of the bal-
ance of the account to Julie.
The formal charges included an allegation that peters vio-
lated the following provision of Canon 6 of the Code of
professional responsibility for his actions prior to September
1, 2005: “dr 6-101 Failing to Act Competently. (A) A law-
yer shall not: . . . (3) Neglect a legal matter entrusted to him
or her.”
For acts and omissions occurring after September 1, 2005,
the formal charges included that peters violated his oath of
office as an attorney and the following provisions of Neb. Ct.
r. of prof. Cond. as now codified: Ҥ 3-501.3. diligence. A
lawyer shall act with reasonable diligence and promptness in
representing a client” and “§ 3-501.4. Communications. (a) A
lawyer shall: . . . (3) keep the client reasonably informed about
the status of the matter; [and] (4) promptly comply with rea-
sonable requests for information.”
2. Judith r. hermAN
The formal charges in case No. S-07-960 relate to peters’
representation of Judith r. Herman in several cases.
346 	277 NEBrASKA rEporTS

(a) probate of Estate
The first count arose from Herman’s request in 1999 that
peters initiate estate proceedings for her parents, who died
in July and August 1999. Between 1999 and May 2006,
peters failed to open estate proceedings for Herman’s parents
and failed to effectuate the transfer of property in Kimball,
Nebraska, to Herman. Herman terminated peters’ representa-
tion in May 2006 after retaining a second attorney. The formal
charges also allege that Herman gave peters her parents’ wills
and that he failed to return them to her.
The formal charges for count I included that peters violated
dr 6-101(A)(3) of the Code of professional responsibility
and also that peters violated §§ 3-501.3 and 3-501.4(a)(3)
and (4). In addition, peters allegedly violated Neb. Ct. r. of
prof. Cond. §§ 3-501.15(a) and (d) and 3-501.16(d), which
require a lawyer to hold a client’s property separately from
the lawyer’s property and to return the same upon termination
of representation.
(b) Kinder Morgan, Inc.
In count II, the formal charges allege that peters failed to
properly pursue a legal action related to a residential rental
property in Scottsbluff, Nebraska, owned by Herman. As to
this count, the formal charges included that peters violated
dr 6-101(A)(3) of the Code of professional responsibility and
§§ 3-501.3 and 3-501.4(a)(3) and (4).
The property at issue was vacant in February 2003, when
Kinder Morgan, Inc., a natural gas utility company, wrong-
fully terminated gas service. As a result, a water pipe burst,
causing water damage to the residence. The residence was
sold in February 2004 prior to any repair of the water damage.
Herman hired peters to file suit against Kinder Morgan for
damages. peters drafted a complaint and filed it on december
10. peters allegedly failed to respond to contacts from an
attorney for Kinder Morgan seeking an early resolution of
the matter. In addition, peters allegedly failed to provide the
attorney with documentation to support the alleged damages
and failed to send copies of communications from the attorney
to Herman. peters also allegedly failed to adequately respond
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	347
Cite as 277 Neb. 343

to requests for production of documents, failed to inform
Herman of the requests, and misplaced additional documenta-
tion Herman provided to support her claim for lost rent due to
damage to the residence.
peters took no action on the case after october 4, 2005.
Herman sent peters a letter on May 25, 2006, informing him
that she was terminating his representation of her. She settled
her claim against Kinder Morgan on September 13, and the
case was dismissed on october 5.
(c) past-due Child Support
The third count in the formal charges related to the recovery
of past-due child support for Herman. The referee found no
ethical violations related to the child support claim, and the
Counsel for discipline has not appealed that finding. Both par-
ties agree it is no longer at issue.
3. referee’S fiNdiNgS: Julie
After a hearing, the referee submitted a report and recom-
mendation, including findings of fact. regarding the grievance
filed by Julie, the referee found that the primary asset to be
divided in the divorce was a TSp account worth approximately
$40,000. Kerry and Julie both contacted peters to tell him that
the TSp legal department said the divorce decree did not con-
tain the requisite language for issuance of the second payment.
Kerry had followup contacts with peters by fax, telephone, and
e-mail regarding the TSp account payment.
peters did not respond to a letter from the Counsel for
discipline sent in June 2006, after Julie had filed her griev-
ance. The Counsel for discipline sent a second letter on July
12, and peters submitted a response on July 21, in which he
stated that he had told Julie the money was not available to her
until Kerry retired. peters said he believed that Julie planned to
follow up on her own.
on July 25, 2006, peters drafted and obtained Kerry’s signa-
ture on a stipulation and agreement to be filed with the district
court to remedy the issues with the TSp account. The court
entered a “retirement Benefits Court order” on July 26. The
348 	277 NEBrASKA rEporTS

order directed that the remaining portion of the TSp account, in
the amount of $20,241.98, be paid to Julie.
The referee found that peters was aware of the issues
regarding the second TSp account payment prior to his July
21, 2006, response to the Counsel for discipline and that
peters simply failed to follow through by taking any action
on the requests of Kerry and Julie. The referee found by clear
and convincing evidence that peters violated dr 6-101 and
§ 3-501.3 by failing to act competently and with reasonable
diligence and promptness in responding to inquiries by Kerry
and Julie to address the legal issues concerning the second
TSp account payment. The referee found that peters’ “benign
neglect” was not done with an intent to prejudice or damage
his client.
4. referee’S fiNdiNgS: hermAN
(a) probate of Estate
In the first count related to Herman, the referee found
that peters took no action to open estate proceedings or to
transfer the real property between 1999 and May 2006, when
his representation was terminated. peters testified he did not
initiate the estate proceedings and transfer the real property
because he had not received any money from Herman to pay
for the costs and fees to handle the matter. peters claimed he
told Herman that he would need “a few hundred dollars” to
open the estate. However, in peters’ initial response to a let-
ter from the Counsel for discipline, peters stated that some
of the matters he handled for Herman had been set aside in
favor of more pressing problems, with Herman’s knowledge
and consent.
The referee found it “distressing” that peters did not men-
tion the failure to be paid as a defense in his January 25,
2007, letter responding to the Counsel for discipline. peters
offered no evidence concerning a fee agreement or to show that
Herman consented to setting the estate matter aside while other
matters were addressed. peters testified that he never sent any
correspondence to Herman about the estate matter.
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	349
Cite as 277 Neb. 343

The referee found by clear and convincing evidence that
peters violated dr 6-101 and § 3-501.3 by failing to act
competently and with reasonable diligence and promptness in
opening an estate for Herman’s parents and transferring the
real property to Herman. He also found by clear and convinc-
ing evidence that peters violated § 3-501.4 by failing to keep
Herman reasonably informed about the status of the estate mat-
ter. The referee did not find that peters violated §§ 3-501.15
and 3-501.16 by failing to properly hold the original wills.
Herman conceded at the hearing before the referee that the
original wills could have been misplaced while they were in
her possession. Therefore, it was not sufficiently clear if and
when peters would have had the responsibility to hold the wills
for Herman’s benefit.
(b) Kinder Morgan
The second count involved a lawsuit filed by Herman against
Kinder Morgan. The complaint alleged that Herman had sus-
tained $10,000 in damages to the property and $1,875 in dam-
ages for lost rents. Herman testified that peters did not send
her a copy of the letter from Kinder Morgan’s counsel seeking
resolution of the matter or inform her of Kinder Morgan’s offer
to discuss a settlement. peters claimed he sent a copy of the
letter, but he acknowledged that he had no records to corrob-
orate the claim.
Nor did peters provide Herman with copies of the requests
for production of documents or letters from Kinder Morgan’s
counsel. peters admitted at the hearing before the referee
that he did not respond to Kinder Morgan’s second request
for documents. peters provided Kinder Morgan with a repair
estimate for the water damage, which was the only documenta-
tion related to the discovery requests. Kinder Morgan replied
that peters’ response was inadequate and not responsive to the
discovery requests. on May 25, 2006, Herman sent peters a
letter terminating his representation of all her legal matters and
informing him that she had retained another attorney to handle
her claim against Kinder Morgan.
The referee found that peters provided scant evidence that
he kept Herman reasonably informed of the status of her action
350 	277 NEBrASKA rEporTS

against Kinder Morgan. While peters testified that he forwarded
the discovery requests and the motion to compel, Herman dis-
puted these contentions. peters also admitted that there were no
cover letters for delivery of the documents to Herman to cor-
roborate his testimony. peters testified that he communicated
to Herman through telephone conversations. The referee said
that peters’ testimony lacked credibility, because he repeat-
edly acknowledged that he failed to provide telephone records
evidencing any calls to Herman. In addition, the referee found
that contrary to peters’ prior assertions in his deposition, there
were no entries on his day planner or in his billing records to
substantiate any telephone calls to Herman.
The referee found by clear and convincing evidence that
peters violated § 3-501.4 by failing to keep Herman reason-
ably informed about the status of the matter. It was clear
that peters had difficulty producing the documents requested
in Kinder Morgan’s discovery requests, but he failed to take
proper action to respond to the requests. The referee also
found by clear and convincing evidence that peters violated
dr 6-101 and § 3-501.3 by failing to act competently and with
due diligence.
5. referee’S reCommeNdAtioNS AS to SANCtioN
The referee noted that peters had previously received a
private reprimand on April 18, 2002, for violating Canon 1,
dr 1-102(A)(1), (4), and (5), and dr 6-101(A)(2) and (3),
based on charges that he neglected a legal matter entrusted to
him. on January 14, 2005, for violating dr 1-102(A)(1) and
(5) and dr 6-101(A)(2), peters received a public reprimand,
was placed on probation for 1 year, was restricted from tak-
ing bankruptcy cases, and was ordered to complete 15 hours
of continuing legal education in the area of bankruptcy law.
The sanctions were based on charges that he neglected a bank-
ruptcy action.
The referee noted that peters presented several mitigating
factors. He offered into evidence his involvement in commu-
nity and volunteer projects. However, the referee found that
peters’ community service did not deserve “a lot of merit”
in these cases. peters was advised to consider whether his
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	351
Cite as 277 Neb. 343

extensive community service might deserve some of the blame
for his failure to diligently represent his clients.
The referee recommended that peters be suspended from the
practice of law for 60 days, that a public reprimand be issued,
and that upon reinstatement, peters be ordered to work with a
practice monitor for 1 year at his own cost.
III. ASSIGNMENTS oF Error
The Counsel for discipline filed exceptions to the referee’s
report, asserting that the recommended sanction was too lenient.
peters also filed exceptions, arguing that the referee (1) failed
to apply the clear and convincing evidence standard of review
regarding findings that ethical violations were committed, (2)
placed burdens of proof on peters and failed to require the
Counsel for discipline to carry its burden of proof, and (3)
erred in finding that the testimony of the complainants con-
stituted credible evidence on which to base findings of ethi-
cal violations.
IV. STANdArd oF rEVIEW
[1,2] A proceeding to discipline an attorney is a trial de novo
on the record.1 In attorney discipline and admission cases, the
Nebraska Supreme Court reviews recommendations de novo on
the record, reaching a conclusion independent of the referee’s
findings. When credible evidence is in conflict on material
issues of fact, however, the court considers and may give weight
to the fact that the referee heard and observed the witnesses
and accepted one version of the facts rather than another.2
V. ANAlYSIS
1. Julie’S grievANCe
The formal charges in case No. S-07-517 allege that peters
failed to act diligently and competently in obtaining an order
to allow Kerry’s TSp account to be liquidated and distributed
to Julie as agreed to by the parties. It was not until almost 2
1 State ex rel. Counsel for Dis. v. Switzer, 275 Neb. 881, 750 N.W.2d 681
(2008).
2 State ex rel. Counsel for Dis. v. Scott, 275 Neb. 194, 745 N.W.2d 585
(2008).
352 	277 NEBrASKA rEporTS

years after the property settlement agreement was prepared that
an order was signed by the district court directing distribution
of the TSp account as provided in a stipulation filed on July
25, 2006.
peters argues that the “key determination” related to dis-
bursement of the TSp account is whether Julie ever asked him
to resolve the incomplete transfer of the funds.3 He asserts
that there is no physical evidence to support her claim, and he
attacks Julie’s credibility. peters argues that Kerry was never
peters’ client and that Kerry also is not credible.
[3,4] Clear and convincing evidence is that amount of evi-
dence which produces in the trier of fact a firm belief or
conviction about the existence of a fact to be proved.4 Clear
and convincing evidence means more than a preponderance
but less than evidence beyond a reasonable doubt.5 The record
supports the referee’s findings by clear and convincing evi-
dence that peters violated dr 6-101 and § 3-501.3 by failing
to act competently and with reasonable diligence and prompt-
ness in responding to Julie’s questions about the second pay-
ment from the TSp account. The referee found that peters’
“benign neglect” did not show an intent to prejudice or damage
his client.
While this court conducts a de novo review and reaches
a conclusion independent of the referee’s findings, we give
weight to the fact that the referee heard and observed the wit-
nesses. peters’ core defense is that the complainants are not
credible. The record supports a finding by clear and convincing
evidence that peters did not diligently and promptly investigate
the delay in the second payment, which was not made until 22
months after the entry of the decree.
2. hermAN’S grievANCe
The formal charges in case No. S-07-960 were related to
probate of the estate of Herman’s parents and a civil suit
against Kinder Morgan.
3 See brief for respondent at 34.
4 State ex rel. NSBA v. Roubicek, 225 Neb. 509, 406 N.W.2d 644 (1987).
5 Id.
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	353
Cite as 277 Neb. 343

peters’ defense was that Herman was not credible. He
claimed that he had not concluded some of the matters Herman
had requested of him because those matters were set aside in
favor of more pressing problems, with Herman’s knowledge
and consent.
peters testified that he did not open an estate for Herman’s
parents, because she refused or declined to provide any funds.
He told Herman he would need “a few hundred dollars” to
cover filing fees, publication, and legal fees, but he did not
send Herman a letter asking for the money, nor did he have
any notes in his file to indicate that he had discussed the
fee request. He did not recall sending any correspondence to
Herman regarding the estate.
The record supports the referee’s findings by clear and con-
vincing evidence that peters violated dr 6-101 and § 3-501.3
by failing to act competently and with reasonable diligence
and promptness in opening the estate of Herman’s parents and
transferring the real property to her.
The referee also found by clear and convincing evidence that
peters violated § 3-501.4 by failing to keep Herman reasonably
informed about the status of the estate. We agree. The referee
found that peters did not violate §§ 3-501.15 and 3-501.16
by failing to properly hold the original wills of Herman’s
parents. We agree. Herman conceded at the hearing that the
original wills could have been misplaced while they were in
her possession.
Count II of the formal charges relates to the civil lawsuit
against Kinder Morgan. peters filed the suit on december 10,
2004, seeking judgment of $11,875. on January 19, 2005,
Kinder Morgan’s attorney sent a fax stating that the company
wished to discuss an early resolution of the matter. peters failed
to respond to several messages about the matter and failed to
respond to Kinder Morgan’s requests for production of docu-
ments over a period of more than 1 year. Herman eventually
terminated her attorney-client relationship with peters.
peters blamed the lack of communication on Herman, stat-
ing that he tried to return her calls, but that she was not home.
He could not corroborate his testimony that he had provided
Herman with copies of documents. Nor did he have records
354 	277 NEBrASKA rEporTS

to support his claim that he communicated with Herman
by telephone. peters had no notations on his day planner
to indicate any telephone calls to Herman, Kinder Morgan,
or cocounsel.
The record supports the referee’s finding by clear and
convincing evidence that peters violated § 3-501.4 by fail-
ing to keep Herman reasonably informed about the status of
the lawsuit against Kinder Morgan and that peters violated
dr 6-101 and § 3-501.3 by failing to act competently and with
due diligence.
3. reSolutioN
A proceeding to discipline an attorney is a trial de novo on
the record.6 In attorney discipline and admission cases, this
court reviews recommendations de novo on the record, reaching
a conclusion independent of the referee’s findings. However,
when credible evidence is in conflict on material issues of fact,
the court considers and may give weight to the fact that the
referee heard and observed the witnesses and accepted one ver-
sion of the facts rather than another.7
We reject peters’ attack on the credibility of his clients. In
State ex rel. NSBA v. Kirshen,8 this court stated:
A lawyer, with the great responsibilities that that posi-
tion requires, should not disparage his clients or those for
whose benefit he is purportedly acting, and hide behind
their alleged faults to excuse his own ineptitude. Not
only is such an approach unmannerly and unseemly, it is
not recognized as a defense to disciplinary matters. If a
lawyer accepts a case, that case must be handled profes-
sionally. If, due to personal relationship problems, the
lawyer cannot handle his responsibility, the lawyer must
withdraw and turn the matter over to a lawyer who has
the competence and integrity to conclude the legal mat-
ter properly.
6 State ex rel. Counsel for Dis. v. Switzer, supra note 1.
7 State ex rel. Counsel for Dis. v. Scott, supra note 2.
8 State ex rel. NSBA v. Kirshen, 232 Neb. 445, 474, 441 N.W.2d 161, 178
(1989).
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	355
Cite as 277 Neb. 343

[5] We are presented with formal charges based on com-
plaints from two clients involving several different events. This
court has held that cumulative acts of attorney misconduct are
distinguishable from isolated incidents, therefore justifying
more serious sanctions.9
peters has previously been disciplined by this court. In 2002,
he received a private reprimand. In January 2005, peters was
publicly reprimanded after entering into a conditional admis-
sion that he violated dr 1-102(A)(1) (violate disciplinary
rule), dr 1-102(A)(5) (engage in conduct that is prejudicial
to administration of justice), and dr 6-101(A)(2) (handle
legal matter without preparation adequate in circumstances).10
As part of the discipline, we ordered that peters be placed on
probation for 1 year, during which he was not to accept any
bankruptcy cases, and he was required to complete 15 hours of
continuing legal education in the area of bankruptcy law.
In the present case, the referee found it troubling that this
is the third time peters has been found guilty of neglect and
failure to act with reasonable diligence. We agree. In fact,
peters was on disciplinary probation during the period that he
was representing Julie and Herman. Yet, he failed to keep his
clients informed of the status of their cases or to diligently
pursue their cases.
The 	referee 	reviewed 	mitigating 	factors 	presented 	by
peters, which included a record of his community involve-
ment. However, the referee noted that the community service
might have contributed to peters’ failure to diligently represent
his clients.
[6] The referee recommended that peters be suspended for
60 days. The Counsel for discipline requests a suspension of 1
year. In evaluating attorney discipline cases, this court consid-
ers aggravating and mitigating circumstances, the attorney’s
conduct underlying the charges and throughout the proceeding,
9 State ex rel. Counsel for Dis. v. Wadman, 275 Neb. 357, 746 N.W.2d 681
(2008), citing State ex rel. Counsel for Dis. v. Sipple, 265 Neb. 890, 660
N.W.2d 502 (2003).
10 See State ex rel. Counsel for Dis. v. Peters, 269 Neb. 162, 690 N.W.2d 629
(2005), modified 269 Neb. 577, 694 N.W.2d 203.
356 	277 NEBrASKA rEporTS

and the propriety of a sanction with the sanctions imposed in
similar cases.11
The Counsel for discipline points to State ex rel. Counsel
for Dis. v. Wadman12 as a case similar to the one at bar. There,
the attorney failed to attend a hearing on a summary judgment
motion and the client’s case was dismissed. The attorney did
not inform the client of the dismissal. In a second case, the
attorney neglected the matter and did not file the action within
the time allowed by the statute of limitations. The attorney had
been the subject of two prior disciplinary proceedings generally
involving the neglect of three separate clients’ matters while he
was in private practice. He had been a practicing attorney for
only 4 years at the time he closed his private practice and went
to work as an in-house counsel. We suspended the attorney
from the practice of law for 6 months.
peters is an experienced lawyer who has been in private
practice since 1973. In the case of Julie, peters failed to use
the correct wording in the divorce decree to effectuate the
disbursement of the TSp account. When the problem was
brought to his attention, he failed to take the necessary steps to
resolve it. According to Julie, she and her ex-husband, Kerry,
repeatedly contacted peters and he still took no action. After
a grievance was filed against peters, he prepared an order that
resolved the issue.
As for the matters presented by Herman, peters failed to
open estate proceedings, even after 6 years had passed, and he
failed to keep Herman informed about the activities occurring
in the Kinder Morgan case. A second attorney resolved the
matter within months after peters was discharged.
[7] Each attorney discipline case must be evaluated indi-
vidually in light of its particular facts and circumstances.13
For purposes of determining the proper discipline of an attor-
ney, this court considers the attorney’s acts both underlying
11 See State ex rel. Counsel for Dis. v. Barnes, 275 Neb. 914, 750 N.W.2d
668 (2008).
12 State ex rel. Counsel for Dis. v. Wadman, supra note 9.
13 State ex rel. Counsel for Dis. v. Davis, 276 Neb. 158, 760 N.W.2d 928
(2008).
STATE Ex rEl. CouNSEl For dIS. v. pETErS 	357
Cite as 277 Neb. 343

the events of the case and throughout the proceeding.14 The
determination of an appropriate penalty to be imposed on
an attorney in a disciplinary proceeding also requires the
consideration of any aggravating or mitigating factors.15 The
only mitigating factor presented by peters is his commu-
nity involvement.
Taking into consideration that peters has previously been
reprimanded privately and publicly for similar actions, we
believe a suspension of 60 days is too lenient. We therefore
impose a 6-month period of suspension.
VI. CoNCluSIoN
We find by clear and convincing evidence that peters vio-
lated dr 6-101(A)(3) and § 3-501.3 with respect to Julie,
dr 6-101(A)(3) and §§ 3-501.3 and 3-501.4(a)(3) and (4) with
respect to the estate of Herman’s parents, and dr 6-101(A)(3)
and §§ 3-501.3 and 3-501.4(a)(3) and (4) with respect to
Herman’s case against Kinder Morgan. It is the judgment of
this court that peters be suspended from the practice of law for
a period of 6 months, effective immediately.
peters shall comply with Neb. Ct. r. § 3-316, and upon fail-
ure to do so, he shall be subject to punishment for contempt of
this court. upon reinstatement, peters shall engage an attorney
to monitor his practice for a period of 1 year. peters shall pay
all costs associated with this monitoring. Furthermore, peters
is 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 within 60 days after an order imposing
costs and expenses, if any, is entered by this court.
JudgmeNt of SuSpeNSioN.
14 Id.
15 Id.
358 	277 NEBrASKA rEporTS