State ex rel. Counsel for Dis. v. Lisonbee

STATE EX REL. COUNSEL FOR DIS. v. LISONBEE 	379
Cite as 285 Neb. 379
State of NebraSka ex rel. C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator, v.
JameS G. liSoNbee, reSpoNDeNt.
826 N.W.2d 874
Filed March 1, 2013. 	No. S-12-185.
Original action. Judgment of suspension.
heaviCaN, C.J., WriGht, C oNNolly, StephaN, mCC ormaCk,
miller-lermaN, and CaSSel, JJ.
per C uriam.
INTRODUCTION
Respondent, James G. Lisonbee, was admitted to the prac-
tice of law in the State of Nebraska on June 4, 2010. At all
relevant times, he was engaged in the private practice of law
in Lincoln, Nebraska. Respondent has been on temporary
suspension since April 11, 2012. On August 23, 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 violated his oath of office as an attorney, Neb. Rev. Stat.
§ 7-104 (Reissue 2012); Neb. Ct. R. §§ 3-303(B) and 3-309(E)
(rev. 2011) of the disciplinary rules; and Neb. Ct. R. of Prof.
Cond. §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4
(communications), 3-501.16(a) and (d) (declining or terminat-
ing representation), 3-508.1(b) (bar admission and disciplinary
matters), and 3-508.4(a) and (d) (misconduct).
On January 2, 2013, 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 suspension for 3 years and,
following reinstatement, 2 years of probation, including moni-
toring. If accepted, the monitoring shall be by an attorney
licensed to practice law in the State of Nebraska and who shall
be approved of by the Counsel for Discipline. The monitor-
ing plan shall include, but not be limited to, the following:
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

380 	285 NEBRASKA REPORTS
During the first 6 months of 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 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
monitor has reviewed the report and that respondent continues
to abide by the terms of 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 a 3-year suspension and, following reinstatement, 2 years
of probation “appears to be appropriate under the facts of this
case and will adequately protect the public.”
Upon due consideration, we approve the conditional admis-
sion, and we order a 3-year suspension effective immedi-
ately and, following reinstatement, 2 years of probation and
monitoring.
FACTS
Count I.
With respect to count I, the formal charges state that in late
June 2010, an individual referred to as “the first client” filed
suit, pro se, in the district court for Lancaster County seeking

STATE EX REL. COUNSEL FOR DIS. v. LISONBEE 	381
Cite as 285 Neb. 379
to dissolve his marriage. Thereafter, he contacted the Volunteer
Lawyers Project at the Nebraska State Bar Association seek-
ing legal counsel for his divorce. The Volunteer Lawyers
Project referred him to respondent. He and respondent met,
and respondent agreed to represent him. According to the first
client, at first, the communication between him and respondent
was good. Initially, the first client’s wife was difficult to serve
with summons; however, she was eventually served in person
by the sheriff on July 27, 2010.
As time went on, it became more difficult for the first cli-
ent to contact respondent. Nothing appears to have happened
in the case from the time the first client’s wife was served
until November 15, 2010, when the district court judge issued
a show cause order to respondent advising that the case
would be dismissed for lack of prosecution. In response, on
December 6, respondent filed a motion for default judgment
that failed to comply with the rules of the district court for
the Third Judicial District. A week later, on December 14,
respondent filed a notice of hearing on a form provided by the
clerk of the district court’s office advising of a hearing sched-
uled for December 22.
A hearing was held on December 22, 2010, at which
respondent appeared with the first client and the opposing
party appeared pro se. Respondent came to the hearing on
December 22 unprepared, and the judge continued the hear-
ing so that respondent could prepare. The judge directed that
respondent was to schedule the resumption of the hearing.
By February 15, 2011, respondent had not scheduled the
conclusion of the hearing, so the judge again issued a show
cause order to respondent. On March 9, respondent filed
another motion for default judgment, again failing to comply
with the local rules because respondent failed to include a
notice of hearing and a certificate of service.
A hearing was held on March 30, 2011, at which respond-
ent appeared, but again was unprepared. The judge again
continued the hearing, noting, “‘Due to incompleteness of
evidence presented, hearing continued to be rescheduled by
counsel. If case is not resolved within thirty days, it will
be dismissed.’”

382 	285 NEBRASKA REPORTS
On April 28, 2011, respondent filed another motion for
default judgment, but again, the motion did not comply with
the local rules because it failed to contain a notice of hearing
and a certificate of service. On May 2, the judge dismissed the
case for lack of prosecution, noting:
“As of the date of this order, no further hearing has
been held in this case. (The court notes that, on April
28, the plaintiff again filed a motion for default judg-
ment; however, contrary to Local Rule 3-2(B), no hear-
ing date was secured from the court’s staff and, like
with the motion filed on March 9, no notice of hearing
was filed.)”
Upon dismissal of the case, respondent failed to advise the
first client of the dismissal and took no steps to reinstate
the case.
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 §§ 3-501.1, 3-501.3,
3-501.4, and 3-508.4(a) and (d).
Count II.
With respect to count II, the formal charges state that some-
time prior to January 5, 2011, respondent began representing
an individual referred to as “the second client” with regard to
a custody and child support matter pending before the district
court for Lancaster County. On January 5, the intervenor’s
counsel filed a motion to compel responses to discovery and
sent it to respondent as the second client’s counsel. The inter-
venor’s counsel filed additional motions and notices throughout
the summer and fall of 2011 and indicated in the certificates of
service that copies were sent to respondent.
According to the formal charges, apparently the second cli-
ent became dissatisfied with the representation being provided
by respondent and hired new counsel. On November 7, 2011,
the second client, through his new counsel, sent written notice
to respondent advising that he was terminating the attorney-
client relationship and directed that his file be sent to his
new counsel. The new counsel and her staff made repeated

STATE EX REL. COUNSEL FOR DIS. v. LISONBEE 	383
Cite as 285 Neb. 379
attempts to obtain the file from respondent, but respondent
never responded or provided the file to either the second client
or his new counsel.
On November 23, 2011, the new counsel filed a grievance
against respondent alleging that respondent was withholding
the second client’s file from the new counsel. The Counsel for
Discipline was initially unsuccessful in serving the grievance
on respondent, but it was served upon respondent by the sher-
iff of Lancaster County on January 11, 2012, at respondent’s
address in Lincoln.
Respondent initially failed to respond to the grievance, but
after an application for his temporary suspension was served
upon him, he called the Counsel for Discipline on March 6,
2012, and stated that he would forward the second client’s
file to the new counsel. As of the date of the formal charges,
respondent had not delivered the file to either the second client
or his new counsel.
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 §§ 3-501.1, 3-501.3,
3-501.4, 3-501.16(a) and (d), and 3-508.4(a) and (d).
Count III.
With respect to count III, the formal charges state that on
August 29, 2011, the Counsel for Discipline received a griev-
ance from the first client, generally alleging that respondent
incompetently represented him in a custody and child sup-
port proceeding and was unprepared for trial. On August
29, a copy of the first client’s letter was sent to respondent
by certified mail along with a letter from the Counsel for
Discipline advising respondent that the Counsel for Discipline
was conducting an investigation into the allegations and that
respondent should submit an appropriate written response
addressing the issues raised in the first client’s letter. The
letter was sent to respondent’s address on Garfield Street
in Lincoln, which was respondent’s address on file with the
Nebraska State Bar Association. The letter was returned by the
postal service unclaimed on September 19. The letter was sent

384 	285 NEBRASKA REPORTS
again on September 19, and it was again returned unclaimed
on October 11. An attorney with the Counsel for Discipline
left his business card in respondent’s door on December 13.
Approximately a week later, he left another business card
under the wiper blade on what was believed to be respond-
ent’s car.
On November 23, 2011, the Counsel for Discipline received
a grievance letter against respondent from the new counsel,
noted in count II, alleging that respondent had refused to return
records to the second client that were necessary for the new
counsel to complete the second client’s representation. The
grievance was filed after many unsuccessful attempts by the
new counsel to contact respondent by leaving messages on
respondent’s voice mail.
The Counsel for Discipline sent a copy of this grievance to
respondent at an address on Surfside Drive in Lincoln, which
address respondent had used in a recent filing in the county
court for Lancaster County. A copy of the letter was also sent
to respondent’s address on Garfield Street. Both letters were
returned by the postal service.
On January 11, 2012, copies of the letters from the first cli-
ent and the second client’s new counsel, along with copies of
the letters from the Counsel for Discipline, were personally
served on respondent at his address on Garfield Street by a
deputy from the Lancaster County sheriff’s office. Respondent
had not submitted responses to either the first client’s grievance
or the second client’s new counsel’s grievance by February 6,
so a reminder letter was sent to respondent at his address on
Garfield Street, further advising him that failure to respond
could be a separate ground for discipline. Except for a tele-
phone call from respondent on or about March 6, the Counsel
for Discipline has yet to receive a response from respondent to
either grievance.
The formal charges allege that respondent’s actions consti-
tute violations of his oath of office as an attorney as provided
by § 7-104, disciplinary rules §§ 3-303(B) and 3-309(E),
and professional conduct rules §§ 3-508.1(b) and 3-508.4(a)
and (d).

STATE EX REL. COUNSEL FOR DIS. v. LISONBEE 	385
Cite as 285 Neb. 379
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
determine that by his conduct, respondent violated disciplinary
rules §§ 3-303(B) and 3-309(E) and professional conduct rules
§§ 3-501.1, 3-501.3, 3-501.4, 3-501.16(a) and (d), 3-508.1(b),
and 3-508.4(a) and (d), 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 3 years, effective immediately. Should respondent
apply for reinstatement, his reinstatement shall be conditioned

386 	285 NEBRASKA REPORTS
upon respondent’s being on probation for a period of 2 years,
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, he shall be subject to pun-
ishment 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 2012) 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.
klauS p. liNDNer, appellaNt, v. D ouGlaS kiNDiG,
mayor of the C ity of la viSta, et al., appelleeS.
826 N.W.2d 868
Filed March 1, 2013. 	No. S-12-294.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews
a district court’s order granting a motion to dismiss de novo. When reviewing a
dismissal order, the appellate court accepts as true all the facts which are well
pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the pleader’s conclusions.
2. Limitations of Actions. Which statute of limitations applies is a question of law.
3. Judgments: Appeal and Error. An appellate court reaches a conclusion regard-
ing questions of law independently of the trial court’s conclusion.
4. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
5. Constitutional Law: Appeal and Error. Generally, a constitutional issue not
passed upon by the trial court is not appropriate for consideration on appeal.
6. Constitutional Law: Limitations of Actions. A constitutional claim can become
time barred just as any other claim can.
7. Constitutional Law: Statutes: Proof. A plaintiff can succeed in a facial chal-
lenge only by establishing that no set of circumstances exists under which the act
would be valid, i.e., that the law is unconstitutional in all of its applications.
8. Limitations of Actions. The period of limitations begins to run upon the viola-
tion of a legal right, that is, when an aggrieved party has the right to institute and
maintain suit.
9. ____. The time at which a cause of action accrues will differ depending on the
facts of the case.