State ex rel. Counsel for Dis. v. Gase

State of NebraSka ex rel . C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator , v.
thereSa a. GaSe , reSpoNDeNt.
811 N.W.2d 169
Filed March 9, 2012. 	No. S-11-814.
Original action. Judgment of suspension.
heaviCaN, C.J., WriGht, C oNNolly, StephaN, mCC ormaCk ,
and miller-lermaN, JJ.
per C uriam.
INTRODUCTION
Respondent, Theresa A. Gase, was admitted to the practice
of law in the State of Nebraska on March 9, 2001. At all rel-
evant times, she was engaged in the private practice of law
in Omaha, Nebraska. On November 8, 2011, the Counsel for
Discipline of the Nebraska Supreme Court filed amended for-
mal charges consisting of three counts against respondent. In
the three counts, it was alleged that by her conduct with respect
to three different client matters, respondent had violated her
oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue
2007); Neb. Ct. R. §§ 3-303(B) (violation of disciplinary rule)
and 3-309(E) (rev. 2011) (failure to respond); and Neb. Ct. R. of
Prof. Cond. §§ 3-508.1(b) (bar admission and disciplinary mat-
ters) and 3-508.4(a) and (d) (misconduct). Also on November
8, the Counsel for Discipline filed additional formal charges
consisting of a fourth count against respondent. In the fourth
count, it was alleged that by respondent’s conduct with respect
to a client matter, she had violated her oath of office as an
attorney and Neb. Ct. R. of Prof. Cond. §§ 3-501.4(a)(2), (3),
and (4) (communications) and 3-501.5(f)(1) and (2) (fees).
On January 11, 2012, respondent filed a conditional admis-
sion pursuant to Neb. Ct. R. § 3-313 of the disciplinary rules,
in which she knowingly chose not to challenge or contest the
truth of the matters set forth in the amended formal charges
and the additional formal charges and waived all proceedings
against her in connection therewith in exchange for a judgment
of suspension for 1 year and, following reinstatement, 1 year of
probation, including monitoring. In the conditional admission,
STATE Ex REl. COUNSEl FOR DIS. v. GASE 	479
Cite as 283 Neb. 479
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it is specified that 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: Respondent
shall provide the monitor with copies of all fee agreements with
clients; respondent shall provide the monitor with a monthly
list of cases for which respondent is currently responsible,
which list shall include the date the attorney-client relationship
began, the general type of the case, the date of the last contact
with the client, the last type and date of the work completed on
file (pleading, correspondence, document preparation, discov-
ery, court hearing), the next type of work and date that work
should be completed on the case, and any applicable statute
of limitations and its date; during the first 6 months of proba-
tion, respondent will personally meet with the monitor on a
monthly basis to review the case list and the status of the cases;
respondent will review with the monitor her office practices
and continue to work to develop efficient office procedures
that protect the clients’ interests; the monitor shall have the
right to contact respondent with any questions the monitor may
have regarding respondent’s then-pending cases; and if at any
time the monitor believes respondent has violated the Nebraska
Rules of Professional Conduct or has failed to comply with
the terms of probation, he or she shall report such violation or
failure to the Counsel for Discipline. 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 suspension and probation “appears to be appropriate under
the facts of this case.”
Upon due consideration, we approve the conditional admis-
sion, and we order a 1-year suspension and, following rein-
statement, 1 year of probation and monitoring.
FACTS
Count I.
With respect to count I, the amended formal charges state
that on December 13, 2010, the Counsel for Discipline received
480 	283 NEBRASkA REPORTS

a grievance letter from Marshall Berg, generally alleging that
Berg had paid respondent to represent him in certain matters
and that respondent had failed to complete the work and failed
to communicate with the client. On that same date, a copy of
Berg’s letter was sent to respondent, along with a letter advis-
ing respondent that the Counsel for Discipline was conducting
a preliminary investigation into the allegations and that respond-
ent should submit a written response addressing the issues
raised in Berg’s letter.
By January 18, 2011, respondent had not responded, so
the Counsel for Discipline sent a reminder. On February 3,
an additional reminder was sent to respondent. By March 15,
respondent still had not responded to Berg’s grievance letter, so
the Counsel for Discipline upgraded the matter to formal griev-
ance status. The March 15 letter advised respondent that she
had 15 working days to submit a written response and that her
failure to do so could result in discipline. Respondent received
this letter on March 26. On May 3, another reminder letter was
sent to respondent. On July 15, respondent filed a response.
The amended formal charges allege that respondent’s actions
constitute violations of her oath of office as an attorney as pro-
vided by § 7-104, disciplinary rules §§ 3-303(B) and 3-309(E),
and conduct rules §§ 3-508.1(b) and 3-508.4(a) and (d).
Count II.
With respect to count II, the amended formal charges state
that on March 18, 2011, the Counsel for Discipline received a
grievance letter from Mark Huss. The Counsel for Discipline
sent respondent a copy of the grievance letter from Huss, along
with a letter that directed respondent to submit an appropriate
written response addressing Huss’ concerns. The letter from the
Counsel for Discipline further advised respondent that failure
to respond to the inquiry could constitute a basis for discipline.
Respondent received the letter on March 19.
By May 3, 2011, respondent had failed to submit a written
response, so a reminder letter was sent. Respondent filed her
response to Huss’ grievance on July 21.
The amended formal charges allege that respondent’s actions
constitute violations of her oath of office as an attorney as
STATE Ex REl. COUNSEl FOR DIS. v. GASE 	481
Cite as 283 Neb. 479

provided by § 7-104, disciplinary rules §§ 3-303(B) and
3-309(E), and conduct rules §§ 3-508.1(b) and 3-508.4(a)
and (d).
Count III.
With respect to count III, the amended formal charges state
that on May 26, 2010, the Counsel for Discipline sent respond-
ent a copy of a grievance letter received from Roger Gast. The
Counsel for Discipline directed respondent to submit a written
response addressing Gast’s concerns.
By June 29, 2010, respondent had not submitted a response,
so a reminder letter was sent. A second reminder letter was
sent on July 14. On that same date, respondent faxed a letter
to the Counsel for Discipline advising that she would submit
her response to the Gast matter by July 26. The Counsel for
Discipline received respondent’s response on July 20.
On September 2, 2010, the Counsel for Discipline sent a
letter to respondent requesting that respondent call to arrange a
time when the Counsel for Discipline could review her file con-
cerning Gast. On September 11, respondent advised that Gast’s
file was in long-term storage in Texas and that she would not
be able to retrieve it until around the Thanksgiving holiday. On
November 23, the Counsel for Discipline sent respondent an
e-mail message reminding her to obtain Gast’s file when she
was in Texas for the holiday.
On December 15, 2010, respondent and the Counsel for
Discipline met to discuss the Gast matter and review the docu-
ments that respondent found. Respondent had not located the
actual file. During their discussion, respondent indicated that
she would obtain statements from two employees who had
assisted her in the review of Gast’s case file.
As of January 24, 2011, respondent still had not provided the
requested file or statements from her employees; the Counsel
for Discipline sent a letter to her reminding her to submit the
requested information. As of February 22, respondent had not
responded to the January 24 letter, nor had she provided the
requested information. The Counsel for Discipline sent another
reminder letter.
482 	283 NEBRASkA REPORTS

By April 1, 2011, respondent had not responded. As a result,
the Gast matter was upgraded to formal grievance status and a
letter was sent to respondent advising her of this and further
requesting that she furnish the information and documents pre-
viously requested. Respondent received this letter on April 14.
On April 19, respondent furnished some of the requested docu-
ments and a letter of explanation.
The amended formal charges allege that respondent’s actions
constitute violations of her oath of office as an attorney as pro-
vided by § 7-104, disciplinary rules §§ 3-303(B) and 3-309(E),
and conduct rules §§ 3-508.1(b) and 3-508.4(a) and (d).
Count IV.
The additional formal charges allege that on or about March
24, 2008, respondent was retained by Gast, the same client
from count III of the amended formal charges, to evaluate
Gast’s criminal case to determine whether there were grounds
for possible postconviction relief. At the time respondent was
retained, Gast’s fiance, Mary Davis, paid respondent $1,200 of
an agreed upon fee of $2,500 and by the terms of the agree-
ment, the balance was to be paid within 90 days. No further
payments were made by Gast or Davis.
Gast made numerous attempts to contact respondent through-
out the spring and summer of 2008 to determine the results of
respondent’s efforts in reviewing his case. Gast did not hear
from respondent by either mail or telephone calls until October
3, 2008, when respondent sent Gast a letter stating that she
would respond to him in writing within 5 days. She further
apologized for the lack of communication.
On October 29, 2008, respondent wrote to Gast and advised
him that she had completed some research regarding his case,
but that she would not perform any further work until he paid
the balance of the agreed upon retainer.
Respondent did not correspond again with Gast until February
17, 2009, at which time respondent again advised Gast that she
would not do any more work on his case until the balance of
the agreed-upon fee was paid.
On May 18, 2009, according to the additional formal charges,
respondent sent a letter to Gast advising him that she had met
STATE Ex REl. COUNSEl FOR DIS. v. GASE 	483
Cite as 283 Neb. 479

with Davis and had advised Davis that “since less than half of
the agreed upon amount had been paid, it was difficult to ren-
der half an opinion.” In the letter, respondent also advised Gast
regarding his upcoming parole board hearing.
On July 2, 2009, respondent returned Gast’s documents to
him, but she did not provide him with the results of her research
or an evaluation of his case. Despite Gast’s requests, respond-
ent never provided Gast with an accounting of her time.
The 	additional 	formal 	charges 	allege 	that 	respondent’s
actions constitute violations of her oath of office as an attorney
as provided by § 7-104 and conduct rules §§ 3-501.4(a)(2), (3),
and (4) and 3-501.5(f)(1) and (2).
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 amended formal charges
and additional formal charges. We further determine that
484 	283 NEBRASkA REPORTS

by her conduct with respect to counts I through III of the
amended formal charges, respondent violated disciplinary rules
§§ 3-303(B) and 3-309(E) and conduct rules §§ 3-508.1(b) and
3-508.4(a) and (d), as well as her oath of office as an attorney
licensed to practice law in the State of Nebraska. We further
determine that by her conduct with respect to count IV of the
additional formal charges, respondent violated conduct rules
§§ 3-501.4(a)(2), (3), and (4) and 3-501.5(f)(1) and (2), as well
as her oath of office as an attorney. Respondent has waived
all additional proceedings against her in connection herewith,
and 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 1 year, effective 30 days after the filing of this opin-
ion. Should respondent apply for reinstatement, her reinstate-
ment shall be conditioned upon respondent’s being on proba-
tion for a period of 1 year, including monitoring following
reinstatement, subject to the terms 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,
she shall be subject to punishment for contempt of this court.
Respondent is also directed to pay costs and expenses in accord-
ance 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.
STATE Ex REl. COUNSEl FOR DIS. v. GASE 	485
Cite as 283 Neb. 479