State ex rel. Counsel for Dis. v. Finney

As previously noted, we have generally allowed limitations
on liability unless those limitations violate statutory provisions
or public policy.14 We have also consistently enforced unambig-
uous insurance contracts.15 Allowing Van Ert to recover under
the Jeep’s insurance policy would encourage drivers to insure
one vehicle while underinsuring any other vehicles they own.
We therefore reverse the district court’s order and remand with
directions to grant summary judgment for State Farm. Because
we reverse the district court’s award to Van Ert, we need not
address Van Ert’s cross-appeal.
CONCLUSION
Our prior case law has allowed insurance companies to
limit their liability as long as those limitations do not violate
statutes or public policy. We find that the language of the State
Farm insurance policy is not more restrictive than the statute,
nor does it violate the public policy of this state. We therefore
reverse the decision of the district court with directions to enter
judgment in favor of State Farm.
R eveRsed and Remanded with diRections.
14 See, Lynch v. State Farm Mut. Auto. Ins. Co., 275 Neb. 136, 745 N.W.2d
291 (2008); Hemenway, supra note 7; Ploen v. Union Ins. Co., 253 Neb.
867, 573 N.W.2d 436 (1998); State Farm Mut. Auto. Ins. Co. v. Hildebrand,
243 Neb. 743, 502 N.W.2d 469 (1993).
15 See, Jones, supra note 3; Ostransky v. State Farm Ins. Co., 252 Neb. 833,
566 N.W.2d 399 (1997); Farm Bureau Ins. Co. v. Bierschenk, 250 Neb.
146, 548 N.W.2d 322 (1996).
state of nebRaska ex Rel . counsel foR discipline of the
nebRaska supReme couRt, RelatoR, v.
RobeRt a. finney, Respondent.
758 N.W.2d 622
Filed December 19, 2008. 	No. S-07-533.
1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an
attorney is a trial de novo on the record, in which the Nebraska Supreme Court
reaches a conclusion independent of the findings of the referee.
914 	276 NEBrASkA rEpOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

2. Disciplinary Proceedings: Proof. the charges against an attorney in a discipli-
nary proceeding must be established by clear and convincing evidence.
3. Disciplinary Proceedings. the basic issues in a disciplinary proceeding against a
lawyer are whether discipline should be imposed and, if so, the type of discipline
appropriate under the circumstances.
4. ____. 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. We also consider an attorney’s
acts both underlying the offenses and throughout the disciplinary proceeding and
any aggravating and mitigating circumstances.
5. ____. the Nebraska Supreme Court considers the propriety of a sanction with
reference to the sanctions imposed in similar cases.
6. ____. the Nebraska Supreme Court evaluates each attorney discipline case indi-
vidually, in light of its particular facts and circumstances.
Original action. Judgment of suspension.
kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
robert A. Finney, pro se.
heavican, c.J., connolly, G eRRaRd, stephan, and milleR-
leRman, JJ.
peR cuRiam.
SUmmAry
the Counsel for Discipline of the Nebraska Supreme Court,
relator, charged attorney robert A. Finney with violating his
oath of office under Neb. rev. Stat. § 7-104 (reissue 2007) and
the following provisions of the Nebraska rules of professional
Conduct as now codified: § 3-501.5(a) and (f)(1) and (2) (fail-
ing to provide accounting for fees and costs when requested);
§ 3-501.15(a) and (c) through (e) (failing to hold property of
clients in his possession separate from his own property in sep-
arately maintained account); § 3-501.16(a)(1) and (d) (practic-
ing law without license and failing to protect clients’ interests
upon termination of representation); § 3-505.5(a) and (b)(2)
(engaging in unauthorized practice of law); and § 3-508.4(a)
and (d) (engaging in conduct that is prejudicial to administra-
tion of justice).
StAtE Ex rEL. COUNSEL FOr DIS. v. FINNEy 	915
Cite as 276 Neb. 914

Four counts of misconduct compose relator’s charges against
Finney. Counts one and two arise from grievances filed by
two former clients. those counts allege that Finney failed to
provide an accounting of his time and services after they had
requested it. Count two also includes the allegation that Finney
failed to timely refund the unearned portion of his advance fee
payment. During investigations for this disciplinary proceed-
ing, relator expanded count two to also include allegations that
Finney failed to deposit the client’s advance fee payment into
his trust account.
Counts three and four arose after Finney failed to respond
to correspondence from relator’s office regarding these griev-
ances. Because of Finney’s failure to respond, we temporar-
ily suspended his license to practice law in Nebraska. the
two other charges against Finney arose from allegations that
he provided legal advice to two clients after we suspended
his license.
the referee found clear and convincing evidence to support
all four counts. He recommended that Finney’s suspension
remain in place until we render a final judgment. We agree
with the referee’s findings that clear and convincing evidence
supports counts one and two. But we find that Finney did not
engage in the authorized practice of law and dismiss counts
three and four. We suspend Finney for 2 years with credit for
the time he has been temporarily suspended.
BACkgrOUND
finney’s actions leadinG up to the suspension
Finney 	was 	admitted 	to 	practice 	law 	in 	Nebraska 	on
September 18, 1989. Finney is also licensed to practice law
in Iowa and South Dakota. After law school, Finney initially
worked at the pottawattamie County public defender’s office.
After that, for 21⁄2 years, he was a law clerk for a federal judge
in U.S. District Court for both the Northern and the Southern
Districts of Iowa. Later, in January 1993, Finney was hired by
the Dakota County Attorney’s office as chief deputy county
attorney. In 1996, Finney was appointed as county attorney
for Dakota County. He was elected for his own term in 1998
and again for a second term in 2002. Finney was removed
916 	276 NEBrASkA rEpOrtS

as county attorney by recall in 2003, after which he entered
private practice. Finney’s private practice is located in Sioux
City, Iowa, and consists primarily of criminal defense and fam-
ily law.
the referee found that on November 21, 2006, relator
received a grievance letter from raul Hurtado, a former cli-
ent of Finney’s. Hurtado alleged that he paid Finney a flat
fee of $8,000 for representation in a criminal matter. Hurtado
claimed that Finney failed to provide an accounting of his
services and failed to refund any unearned portion of the
fee payment.
In response to relator’s letter regarding Hurtado’s grievance,
Finney wrote to relator on December 22, 2006, indicating that
he would meet with Hurtado’s family members to discuss their
concerns. Hurtado’s family had retained Finney on behalf of
Hurtado, and the record indicates that Hurtado’s family was
financing his defense. the record is clear that no meeting ever
occurred. Also, Finney never gave any accounting to Hurtado
or anyone acting on his behalf.
the record is also clear that after his December 22, 2006, let-
ter, Finney failed to respond to later inquiries by relator regard-
ing Hurtado’s complaint. Finney received and responded to the
first letter sent by relator informing Finney of Hurtado’s griev-
ance. Finney also acknowledged that he received the second let-
ter requesting information regarding Finney’s fee arrangement
with Hurtado. Finney testified that he instructed his secretary
to mail the requested information to relator but admits that he
never followed through on whether the information was sent.
relator never received the information. regarding Hurtado’s
complaint, Finney also did not respond to six subsequent letters
from relator, dating from January 22 to April 23, 2007. Finney
denied ever receiving any of these subsequent letters. However,
a letter dated march 2, 2007, was sent by certified mail and the
signature reads “robert A. Finney.” Finney testified that it was
not his signature.
Because of the lack of response, relator eventually upgraded
Hurtado’s complaint to a formal grievance. Even after the for-
mal grievance notice was sent on march 2, 2007, Finney failed
to respond. So relator applied to this court for a temporary
StAtE Ex rEL. COUNSEL FOr DIS. v. FINNEy 	917
Cite as 276 Neb. 914

suspension. Finney claims that he did not receive notification
of relator’s application to suspend his license or the order from
this court to show cause why his license should not be sus-
pended. Because Finney failed to respond to this court’s order,
on June 20, we suspended Finney from the practice of law in
Nebraska. Finney did admit that he received this court’s order
of suspension on June 22.
Finney claims that he did not respond to the correspondence
from relator because of faulty office procedures and his absence
from the office. Finney also testified that when relator was
attempting to communicate with him, Finney had an assistant
who may have absconded with his mail. Finney and another
attorney whom he shared office space with had jointly hired
an assistant who they believe hid letters and documents from
them. Finney acknowledged that he had no reason to believe
that his office did not receive the letters—especially those sent
via certified mail. yet, he claimed he was never aware of the
letters and testified that the signatures on the certified mail
receipts were not his. Finney accepted full responsibility for
the alleged deficiencies of his office.
Hurtado’s complaint was not the only grievance filed against
Finney. On January 8, 2007, relator received a complaint from
Jerry kast, who retained Finney to represent him on a driving
under the influence charge. kast had given Finney an advance
fee payment of $1,000. Under their written fee arrangement,
Finney was to charge kast $150 per hour. kast later terminated
Finney’s representation, at which time he requested an account-
ing of Finney’s time and a refund of any unearned portion of
the advance fee payment. Finney did not provide any of the
requested information to kast at that time.
relator forwarded kast’s complaint to Finney on January
9, 2007, and gave him 15 business days to file an appropri-
ate written response. Finney did not file a response, and on
February 15, relator sent another letter. On February 16, Finney
faxed a response. Finney blamed his delay in responding on his
inability to find kast’s file.
In his response to relator, Finney admitted that he represented
kast and had been paid an advance fee payment of $1,000.
Finney claimed to have sent an itemized statement to kast on
918 	276 NEBrASkA rEpOrtS

August 18, 2006, which showed a $452.50 credit. Finney failed
to explain why he did not refund the money sooner; however,
Finney did refund the money to kast on February 16, 2007.
Despite the refund, the referee found that Finney failed
to provide sufficient evidence that he had maintained kast’s
$1,000 fee in Finney’s trust account. His trust account state-
ments showed that he made deposits on July 21 and September
22, 2006. the deposit slips, however, do not indicate which
client’s funds were being deposited and in what amount; the
records show only the total deposit. Because he did not prop-
erly maintain his records, Finney cannot state with certainty
exactly when he deposited kast’s fee advancement into his
trust account or even if he deposited it.
finney’s actions afteR the suspension
On June 20, 2007, we suspended Finney. We based the
suspension primarily upon Finney’s lack of response to the
grievance filed by Hurtado and his failure to properly maintain
kast’s advance fee payment in his trust account. At the time
the suspension took effect, Finney was representing Bobby Jo
giersdorf in a custody, visitation, and support case. the court
scheduled a hearing on giersdorf’s case for July 31. After his
suspension, and before the hearing, Finney advised giersdorf
to appear in court on the scheduled date. He also advised
giersdorf to ask the judge to approve his requested visitation
rights and to continue the hearing until Finney could get his
license back. relator claims that because Finney advised his
client to ask for visitation, he was engaged in the unauthorized
practice of law.
At the hearing, giersdorf followed Finney’s advice. the judge,
however, recognized that this court had suspended Finney’s
license and agreed to continue the case so that giersdorf could
obtain counsel. But the judge stated that he would not base the
length of the continuance upon the reinstatement of Finney’s
license. the judge forwarded a copy of his order to relator,
because he believed Finney had engaged in the unauthorized
practice of law.
At the time of his suspension, Finney was also representing
Jordon Dvorak in a criminal case. the court scheduled Dvorak
StAtE Ex rEL. COUNSEL FOr DIS. v. FINNEy 	919
Cite as 276 Neb. 914

to enter a plea on July 9, 2007. Before the hearing, Finney
impressed upon Dvorak that it was essential that he appear for
his court date. Finney also advised Dvorak to ask the judge to
continue his hearing until after Finney’s license was reinstated.
Dvorak followed Finney’s advice and asked the court for a
continuance. recognizing that Finney’s license was suspended,
the judge appointed a public defender to represent Dvorak and
reported the matter to relator.
Finney stated that in both Dvorak’s and giersdorf’s cases,
he believed that he had a duty to prevent prejudice to his cli-
ents and that he was acting in their best interests. In Dvorak’s
case, Finney believed that Dvorak could receive a jail sentence;
Finney testified that he impressed upon his client the impor-
tance of attending the court date. In giersdorf’s case, the client
primarily wanted visitation rights, so Finney advised him to ask
the judge for visitation. Finney testified that in both instances,
he believed he was giving commonsense advice to his clients
and not engaging in the practice of law.
R efeRee heaRinG
Finney was the only witness at the hearing. Besides the
facts and testimony outlined above, Finney testified that he
was suffering from major depressive disorder and dysthymia.
these ailments stemmed from his recall in 2003 when he was
removed as county attorney for Dakota County. During that
time, he was under professional care, was receiving counseling,
and was taking antidepressant medication.
Finney admitted that his health and personal problems were
not excuses for his behavior, but he believed they affected
how he had managed his office and how he responded to
relator’s inquiries.
R efeRee’s findinGs
the referee found that Finney displayed troublesome behav-
ior regarding his own clients and also in how he handled, or
failed to handle, these disciplinary proceedings. regarding
count one, the referee found clear and convincing evidence
supporting Hurtado’s grievance. He further concluded that
Finney 	had 	violated 	the 	Nebraska 	rules 	of 	professional
920 	276 NEBrASkA rEpOrtS

Conduct when he failed to provide an accounting of his
services to Hurtado (§ 3-501.5(f)(1)) and when he failed
to timely and adequately respond to inquires from relator
(§ 3-508.4(a) and (d)).
regarding count two, the referee found clear and con-
vincing evidence that Finney violated the Nebraska rules of
professional Conduct when he failed to give kast an account-
ing of his time and services. He also found that Finney failed
to timely refund the unearned portion of the advance fee pay-
ment, conduct which violated § 3-501.5(a) and (f)(1) and (2).
Finally, the referee found that Finney did not deposit kast’s
$1,000 fee advancement into his trust account, which violated
§§ 3-501.15(a) and (c) through (e) and 3-501.16(d).
regarding counts three and four, the referee found clear and
convincing evidence that Finney engaged in the unauthorized
practice of law. He reasoned that after Finney was suspended,
he advised giersdorf and Dvorak how to proceed at their hear-
ings, violating §§ 3-505.5(a) and 3-508.4(d). In both cases,
however, the referee stated that he did not find Finney’s failure
to file a formal motion to withdraw a violation of the Nebraska
rules of professional Conduct, because the rules do not explic-
itly require an attorney to file a formal motion of withdrawal
(§ 3-501.16(a)(1) and (d)).
Neither Finney nor relator has filed an exception to the ref-
eree’s findings of fact. the referee recommended that Finney’s
suspension, which began on June 20, 2007, continue until
the time that this court reached its final decision and that
the suspension not continue past that time. After the suspen-
sion is lifted, the referee recommended that Finney be on
probation for 1 year and that this court appoint a mentor to
observe Finney.
ASSIgNmENt OF ErrOr
relator takes exception to the referee’s recommended sanc-
tion. He argues that Finney’s current suspension should be
extended beyond the time this court reaches its final decision,
because the gravity of Finney’s violations requires a more
severe sanction than that recommended by the referee.
StAtE Ex rEL. COUNSEL FOr DIS. v. FINNEy 	921
Cite as 276 Neb. 914

StANDArD OF rEVIEW
[1,2] A proceeding to discipline an attorney is a trial de novo
on the record, in which we reach a conclusion independent of
the findings of the referee.1 the charges against an attorney
in a disciplinary proceeding must be established by clear and
convincing evidence.2
ANALySIS
finney did not enGaGe in the unauthoRized
pRactice of law
the only exception filed relates to the recommended sanc-
tion. the parties filed no exceptions regarding the referee’s
factual findings. We agree with the referee’s factual findings
regarding counts one and two. But after a de novo review, we
find that the record does not establish by clear and convinc-
ing evidence that Finney engaged in the unauthorized practice
of law.
the referee determined that Finney engaged in the unautho-
rized practice of law in two ways while he was suspended.
First, he advised two clients to attend their court dates and
ask for a continuance. Second, Finney told giersdorf to ask
for visitation rights at his hearing. Although an attorney can-
not engage in the practice of law during his or her suspen-
sion, we recognize that attorneys must handle their suspen-
sion in a manner that is not prejudicial to clients. Here, the
evidence shows Finney’s actions were intended to protect his
clients’ interests rather than to practice law. the advice Finney
gave was necessary to protect his client’s interests, because
after Finney received notification of his suspension, there
was not time to employ another attorney before the clients’
court dates.
sanctions foR violations
[3] the basic issues in a disciplinary proceeding against a
lawyer are whether discipline should be imposed and, if so,
1 State ex rel. Special Counsel for Dis. v. Fellman, 267 Neb. 838, 678
N.W.2d 491 (2004).
2 State ex rel. NSBA v. McArthur, 257 Neb. 618, 599 N.W.2d 592 (1999).
922 	276 NEBrASkA rEpOrtS

the type of discipline appropriate under the circumstances.3
Here, the primary question before us is whether the discipline
should be that recommended by the referee or something else.
Under Neb. Ct. r. § 3-304, we may consider and impose the
following public sanctions for attorney misconduct: (1) disbar-
ment; (2) suspension for a fixed period of time; (3) probation
instead of or subsequent to suspension, on such terms as the
court may designate; (4) censure and reprimand; or (5) tempo-
rary suspension.4
[4,5] to determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, we con-
sider 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 pres-
ent or future fitness to continue in the practice of law.5 We
also consider an attorney’s acts both underlying the offenses
and throughout the disciplinary proceeding and any aggravat-
ing and mitigating circumstances.6 In addition, we consider the
propriety of a sanction with reference to the sanctions imposed
in similar cases.7
[6] We evaluate each attorney discipline case individually,
in light of its particular facts and circumstances.8 the evidence
shows Finney displayed an indifferent attitude toward his prac-
tice of law. He ignored requests by his clients for an accounting
of his time and services, he failed to timely return his client’s
3 State ex rel. Counsel for Dis. v. Dortch, 273 Neb. 667, 731 N.W.2d 594
(2007), citing State ex rel. Counsel for Dis. v. Petersen, 272 Neb. 975, 725
N.W.2d 845 (2007).
4 See, State ex rel. Counsel for Dis. v. Barnes, 275 Neb. 914, 750 N.W.2d
668 (2008); State ex rel. Counsel for Dis. v. Wadman, 275 Neb. 357, 746
N.W.2d 681 (2008).
5 See id.
6 See State ex rel. NSBA v. Johnson, 256 Neb. 495, 590 N.W.2d 849
(1999).
7 See State ex rel. Counsel for Dis. v. Riskowski, 272 Neb. 781, 724 N.W.2d
813 (2006).
8 See id.
StAtE Ex rEL. COUNSEL FOr DIS. v. FINNEy 	923
Cite as 276 Neb. 914

unearned advance fee payment, he failed to maintain unearned
client funds in a separate trust account, and he continuously
neglected to respond to demands made by relator.
Additionally, Finney’s lack of cooperation with relator has
continued after the hearing on these charges. Because Finney
failed to cooperate with his own lawyer, his lawyer withdrew
from these proceedings. Furthermore, after his lawyer withdrew,
Finney failed to submit to the referee a posthearing brief and
a medical report outlining his alleged medical conditions. this
conduct undermines Finney’s claims that he was unaware of
relator’s correspondence and this court’s order to show cause.
Instead, this shows that Finney is either unable or unwilling to
cooperate with this disciplinary process.
As mitigating factors, we recognize that during the rel-
evant time, Finney was contending with personal and health
issues that undoubtedly caused him mental and financial stress.
Since his suspension, Finney entered a rehabilitation facility to
address his issues with alcohol and depression. He has sought
counseling and is involved in Alcoholics Anonymous. there is
also no record of other complaints against Finney.
relator requests that we suspend Finney for 2 years after we
enter a final order in this appeal. relator has requested a more
severe sanction than did the referee because, absent mitigating
circumstances, the appropriate discipline in cases of misappro-
priation of clients’ funds is disbarment.9 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
In the discipline cases where we have approved disbarment,
the attorneys involved had engaged in numerous occasions of
misappropriation of clients’ funds.11 In Finney’s case, it appears
that there is only the single incident. Furthermore, the record
indicates there were sufficient funds in Finney’s trust account
9 State ex rel. NSBA v. Howze, 260 Neb. 547, 618 N.W.2d 663 (2000); State
ex rel. NSBA v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997).
10 See, id.; State ex rel. NSBA v. Gridley, 249 Neb. 804, 545 N.W.2d 737
(1996).
11 See Howze, supra note 9.
924 	276 NEBrASkA rEpOrtS

to cover the refund and that the refund, while untimely, came
from the trust account.
After a de novo review, it is the judgment of this court that
Finney be suspended from the practice of law for 2 years with
credit to be given for the time he has been temporarily sus-
pended. At the end of the 2-year suspension period, Finney
may apply for reinstatement, provided that he has demonstrated
his compliance with Neb. Ct. r. § 3-316. It is further provided
that his reinstatement, if granted, shall be conditioned on the
following: (1) a showing, confirmed by relator, that there are
no pending or unresolved disciplinary charges against Finney;
(2) a showing that Finney has completed a course on law
firm management or a business practices course that has been
approved by relator; and (3) a showing by independent, third-
party proof that Finney has continued active participation in an
alcohol recovery program. If Finney is approved for reinstate-
ment, he shall be on probation for 1 year following reinstate-
ment, during which period Finney will:
(1) be monitored by an attorney approved by relator;
(2) enter into engagement letters with each client, which let-
ter will describe, at a minimum, the services to be provided by
Finney to the client, the fee arrangement between Finney and
the client, and any requirements imposed by Finney upon the
client; and
(3) work with the monitoring attorney to develop and imple-
ment appropriate office procedures to ensure that client matters
are handled in a timely manner.
In addition, during the period of probation, the monitoring
attorney will review any trust account maintained by Finney
on a monthly basis and report any trust account irregularity or
other disciplinary violation to relator.
Finney is directed to pay costs and expenses in accordance
with Neb. rev. Stat. §§ 7-114 and 7-115 (reissue 1997)
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
the court.
JudGment of suspension.
wRiGht, J., participating on briefs.
mccoRmack, J., not participating.
StAtE Ex rEL. COUNSEL FOr DIS. v. FINNEy 	925
Cite as 276 Neb. 914