State ex rel. Counsel for Dis v. Beltzer

28 	284 NEBRASKA REPORTS
VI. CONCLUSION
We reverse the judgment and remand the cause for a new
trial on the limited issue of the extent to which Markel’s con-
duct prevented D&S from complying with the repair/replace
condition to replacement cost coverage under the policy. Also
to be tried on remand is the amount of the actual cash value
of the loss in the event D&S is not excused from the condition
precedent to replacement cost coverage.
R eveRsed and Remanded foR a new tRial.
milleR-leRman, J., not participating.
state of nebRaska ex Rel. C ounsel foR disCipline
of the nebRaska supReme C ouRt, RelatoR,
v. John e. beltzeR, Respondent.
815 N.W.2d 862
Filed June 29, 2012. 	No. S-11-688.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The purpose of a disciplinary proceeding against an attorney is not so much
to punish the attorney as it is to determine whether in the public interest an attor-
ney should be permitted to practice.
3. ____. To determine whether and to what extent discipline should be imposed in
a lawyer discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
4. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska Supreme Court considers the attorney’s acts both underlying the alleged
misconduct and throughout the proceeding.
5. ____. The determination of an appropriate penalty to be imposed on an attorney
requires consideration of any aggravating or mitigating factors.
6. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances. In addition, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior similar cases.
7. Disciplinary Proceedings: Words and Phrases. In the context of attorney
discipline proceedings, misappropriation is any unauthorized use of client funds
entrusted to an attorney, including not only stealing, but also unauthorized tempo-
rary use for the attorney’s own purpose, whether or not the attorney derives any
personal gain or benefit therefrom.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE EX REL. COUNSEL FOR DIS. v. BELTZER 	29
Cite as 284 Neb. 28
8. Disciplinary Proceedings. Absent mitigating circumstances, the appropriate
discipline in cases of misappropriation or commingling of client funds is typi-
cally disbarment.
9. ____. The fact that the client did not suffer any financial loss does not excuse
an attorney’s misappropriation of client funds and does not provide a reason for
imposing a less severe sanction.
Original action. Judgment of suspension.
John W. Steele, Assistant Counsel for Discipline, for relator.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for respondent.
heaviCan, C.J., wRight, C onnolly, mCC oRmaCk, milleR-
leRman, and Cassel, JJ.
peR C uRiam.
In August 2011, the Counsel for Discipline, relator, filed
formal 	charges 	against 	John 	E. 	Beltzer, 	respondent. 	The
charges alleged that respondent violated his oath of office as
an attorney and the following provisions of Nebraska’s Code of
Professional Responsibility: Canon 1, DR 1-102(A) (miscon-
duct), and Canon 9, DR 9-102(A) and (B) (preserving identity
of funds and property of client). Respondent filed an answer
admitting the facts alleged in the formal charges, and relator
moved for judgment on the pleadings. The case is before us to
determine the proper sanction.
FACTS
Respondent was admitted to the practice of law in Nebraska
in 1983 and at all relevant times was engaged in private prac-
tice in Lincoln, Nebraska. In January 2004, respondent settled
a personal injury case for a client. When the settlement check
came in, respondent disbursed most of it to the client and to
medical providers but, with the agreement of the client, kept
$2,000 in his trust account to pay subsequent medical bills.
In December 2004, the client asked for the remainder of the
money. Respondent admits that at that time, there were insuffi-
cient funds in his trust account to pay her because he had trans-
ferred funds from the trust account to his operating account in
October 2004 to make payroll and cover operating costs. On

30 	284 NEBRASKA REPORTS
the day the client requested the money, the funds were replaced
in the trust account and the client paid the balance.
After relator moved for judgment on the pleadings, respond-
ent requested and was given leave to supplement the record
with mitigation evidence. This evidence included letters or
affidavits from 10 different individuals, all attesting that
respondent has an excellent character and an extensive history
of both assisting animals and offering shelter and financial
assistance to individuals in need. Respondent also submitted
his own affidavit. He explained that at the time he transferred
the money from his trust account to his operating account,
he was in the process of negotiating other settlements and
expected to receive funds from them within the next weeks,
which funds he knew he could use to replace the money
moved from the trust account. Respondent stated that he knew
what he did was wrong and that he regretted the poor decision
he made in 2004. Nevertheless, respondent stated that he felt
he remained qualified and fit to continue to practice law. The
record shows that no prior disciplinary action has been taken
against respondent.
ASSIGNMENT OF ERROR
The only issue on appeal is the appropriate sanction to
be imposed.
STANDARD OF REVIEW
[1] A proceeding to discipline an attorney is a trial de novo
on the record.1
ANALYSIS
gRounds foR disCipline
The Counsel for Discipline alleged respondent violated his
oath of office as an attorney and DR 1-102 and DR 9-102 of
Nebraska’s Code of Professional Responsibility. DR 1-102
is entitled “Misconduct” and provides that a lawyer shall
not “[v]iolate a Disciplinary Rule” or “[e]ngage in conduct
1 State ex rel. Counsel for Dis. v. Lopez Wilson, 283 Neb. 616, 811 N.W.2d
673 (2012); State ex rel. Counsel for Dis. v. Walocha, 283 Neb. 474, 811
N.W.2d 174 (2012).

STATE EX REL. COUNSEL FOR DIS. v. BELTZER 	31
Cite as 284 Neb. 28
involving 	dishonesty, 	fraud, 	deceit, 	or 	misrepresentation.”
DR 9-102 is entitled “Preserving Identity of Funds and Property
of a Client” and provides:
(A) All funds of clients paid to a lawyer or law firm
shall be deposited in an identifiable account or accounts
maintained in the state in which the law office is situated
in one or more state or federally chartered banks, savings
banks, savings and loan associations, or building and loan
associations insured by the Federal Deposit Insurance
Corporation, and no funds belonging to the lawyer or law
firm shall be deposited therein . . . .
(B) A lawyer shall . . . [p]romptly pay or deliver to
the client as requested by a client the funds, securities, or
other properties in the possession of the lawyer which the
client is entitled to receive.
In his answer, respondent admitted all of the facts alleged in
the formal charges. We find these facts constitute clear and
convincing evidence that respondent violated DR 1-102 and
DR 9-102.
sanCtion
[2-6] The purpose of a disciplinary proceeding against an
attorney is not so much to punish the attorney as it is to deter-
mine whether in the public interest an attorney should be per-
mitted to practice.2 To determine whether and to what extent
discipline should be imposed in a lawyer discipline proceed-
ing, we consider the following factors: (1) the nature of the
offense, (2) the need for deterring others, (3) the maintenance
of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the
offender’s present or future fitness to continue in the practice
of law.3 For purposes of determining the proper discipline of an
attorney, we will consider the attorney’s acts both underlying the
2 State ex rel. Counsel for Dis. v. Carter, 282 Neb. 596, 808 N.W.2d 342
(2011); State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d
702 (2009).
3 Carter, supra note 2; State ex rel. Counsel for Dis. v. Thew, 281 Neb. 171,
794 N.W.2d 412 (2011).

32 	284 NEBRASKA REPORTS
alleged misconduct and throughout the proceeding.4 The deter-
mination of an appropriate penalty to be imposed on an attorney
requires consideration of any aggravating or mitigating factors.5
Each attorney discipline case must be evaluated individually in
light of its particular facts and circumstances.6 In addition, the
propriety of a sanction must be considered with reference to the
sanctions imposed in prior similar cases.7
[7-9] In the context of attorney discipline proceedings, mis-
appropriation is any unauthorized use of client funds entrusted
to an attorney, including not only stealing, but also unautho-
rized temporary use for the attorney’s own purpose, whether
or not the attorney derives any personal gain or benefit there-
from.8 This latter form of misappropriation clearly occurred
here. Absent mitigating circumstances, the appropriate disci-
pline in cases of misappropriation or commingling of client
funds is typically disbarment.9 The fact that the client did not
suffer any financial loss does not excuse an attorney’s misap-
propriation of client funds and does not provide a reason for
imposing a less severe sanction.10
Here, respondent concedes that he improperly managed his
trust account and that discipline should be imposed. He argues
for a sanction of a suspension followed by a period of proba-
tion. We find that the mitigating factors in this case include the
absence of a prior disciplinary record, the isolated nature of
the incident, respondent’s extremely cooperative dealings with
4 Carter, supra note 2; State ex rel. Counsel for Dis. v. Herzog, 281 Neb.
816, 805 N.W.2d 632 (2011).
5 State ex rel. Counsel for Dis. v. Hutchinson, 280 Neb. 158, 784 N.W.2d
893 (2010); State ex rel. Counsel for Dis. v. Tarvin, 279 Neb. 399, 777
N.W.2d 841 (2010).
6 Carter, supra note 2; State ex rel. Counsel for Dis. v. Beach, 272 Neb. 337,
722 N.W.2d 30 (2006).
7 Id.
8 Carter, supra note 2; State ex rel. Counsel for Dis. v. Jones, 270 Neb. 471,
704 N.W.2d 216 (2005).
9 Carter, supra note 2; State ex rel. Counsel for Dis. v. Samuelson, 280 Neb.
125, 783 N.W.2d 779 (2010).
10 Carter, supra note 2.

STATE EX REL. COUNSEL FOR DIS. v. BELTZER 	33
Cite as 284 Neb. 28
the Counsel for Discipline, and the numerous letters in sup-
port of respondent’s overall character. We note that respond-
ent made no attempt to conceal what had occurred from the
Counsel for Discipline during its investigation11 and that he
accepts full responsibility for his egregious error in judgment.
There is no indication in the record that respondent has been
out of trust or has committed any other disciplinary infrac-
tion in the years since the incident which is the subject of this
proceeding. Viewed in its entirety, respondent’s conduct does
not indicate the degree of lack of concern for the protection of
the public, the profession, or the administration of justice that
would warrant disbarment.12
Nevertheless, we cannot ignore that misappropriation is a
very serious offense. We therefore order that respondent be
suspended from the practice of law for a period of 1 year.
CONCLUSION
Respondent is hereby suspended from the practice of law
in the State of Nebraska for a period of 1 year, effective 30
days after the filing of this opinion. Respondent shall demon-
strate compliance with Neb. Ct. R. § 3-316, and upon failure
to do so, he shall be subject to punishment for contempt of
this court. Furthermore, respondent 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.
stephan, J., participating on briefs.
11 Compare id.
12 Compare id.