State ex rel. Counsel for Dis v. Wintroub

State of NebraSka ex rel . C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator , v.
DaviD S. WiNtroub, reSpoNDeNt.
765 N.W.2d 482
Filed May 22, 2009. 	Nos. S-05-1518, S-07-942.
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. 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. Disciplinary Proceedings: Proof. In order to sustain a charge in a lawyer dis-
cipline proceeding, the Nebraska Supreme Court must find the charge to be
established by clear and convincing evidence.
3. Disciplinary Proceedings: Convictions. Generally, a judgment of conviction of
a felony or misdemeanor involving moral turpitude, whether or not by plea agree-
ment, is conclusive upon the lawyer in a disciplinary proceeding and is sufficient
to authorize the court to impose discipline.
4. Disciplinary Proceedings. Offenses committed by an attorney in his capacity as
a private individual and not in any professional capacity will nevertheless justify
disciplinary proceedings if the misconduct is indicative of moral unfitness for the
profession.
5. Contracts: Attorney Fees. A lawyer may not retain an unearned fee, even if the
fee agreement clearly provides that the fee is nonrefundable.
6. Disciplinary Proceedings. To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, the Nebraska Supreme
Court considers 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.
7. ____. The determination of an appropriate penalty to be imposed on an attorney
in a disciplinary proceeding requires the consideration of any aggravating or
mitigating factors.
8. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances.
9. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
Original actions. Judgment of disbarment.
John 	W. 	Steele, 	Assistant 	Counsel 	for 	Discipline, 	for
relator.
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	787
Cite as 277 Neb. 787
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

robert b. Creager, of Anderson, Creager & Wittstruck, P.C.,
for respondent in No. S-05-1518.
Melvin C. Hansen and brian C. Hansen, of Nolan, Olson,
Hansen, lautenbaugh & buckley, l.l.P., for respondent in
No. S-07-942.
Wright, C oNNolly, gerrarD, StephaN, mCC ormaCk, and
miller-lermaN, JJ.
per C uriam.
I. INTrODuCTION
These two attorney disciplinary actions involve separate for-
mal charges filed by the Counsel for Discipline of the Nebraska
Supreme Court against David S. Wintroub, who was admitted
to the practice of law in the State of Nebraska on September
28, 1995. Case No. S-05-1518 stems from Wintroub’s involve-
ment in illegally structuring transactions to avoid federal bank
reporting laws. After a felony conviction for this conduct,
Wintroub was temporarily suspended from the practice of law
in the State of Nebraska. The suspension became effective on
January 19, 2006. Case No. S-07-942 involves eight additional
formal charges that were filed against Wintroub on September
6, 2007. These charges relate to his representation of various
clients both before and after his suspension. In both cases, the
court-appointed referee found that Wintroub had violated dis-
ciplinary rules, and Wintroub takes exception to the referee’s
findings and recommended sanctions. We impose discipline as
indicated below.
II. FACTS
1. CaSe No. S-05-1518
In 2000, Wintroub agreed to sell to Gary Storey, Wintroub’s
neighbor, a 50-percent interest in an Internet business Wintroub
was developing. The agreement called for Storey to invest
$40,000 upon the execution of the written contract, $50,000 for
operating expenses by August 25, 2000, and $30,000 for oper-
ating expenses by September 22, if deemed necessary.
Storey told Wintroub that he owned used car dealerships
and that many of his customers paid him in cash and asked
788 	277 NEbrASkA rEPOrTS

if he could make some payments in cash. Wintroub agreed.
Apparently, Storey made all his payments to Wintroub in cash,
and he made them all in increments of less than $10,000.
Wintroub received approximately $67,000 from Storey through
seven cash deposits. At one point, in a period of just 7
days, Wintroub made four deposits of $9,000 each. When
making these deposits, Storey would meet Wintroub at the
bank, and Wintroub would deposit the cash into his business
account and create a receipt for purposes of filing his corporate
tax returns.
On October 4, 2005, pursuant to a plea agreement, Wintroub
was convicted in the u.S. District Court for the District of
Nebraska of structuring transactions to evade reporting require-
ments, in violation of 31 u.S.C. § 5324 (2000). Section
5324(a)(3) provides that no person shall structure or assist in
structuring any transaction for the purpose of evading the report-
ing requirements of 31 u.S.C. § 5313 (2000). Section 5313(a),
in conjunction with 31 C.F.r. § 103.22 (2005), requires banks
to file currency transaction reports for any cash transaction
exceeding $10,000.
before accepting the plea, the u.S. District Court reviewed
the factual basis for the charges. The parties agreed that
31 u.S.C. § 5324 did not require knowledge that structur-
ing transactions was an illegal activity. However, they under-
stood that it was necessary to show that Wintroub knew the
law required banking institutions to report transactions over
$10,000 and that he knowingly assisted in structuring the
transactions with the purpose of avoiding the 31 u.S.C. § 5313
reporting requirement.
Wintroub admitted he knew at the time of the deposits
that banks were required to report all cash transactions in
excess of $10,000. He further admitted that it occurred to
him that “Storey’s decision to give me only cash amounts
of less than $10,000 for deposit, may have been because he
did not want the transaction to be subject to any report.” As
Wintroub’s counsel stated to the court, “[I]t doesn’t stretch the
imagination for someone who knows that there is a $10,000
reporting requirement, that if you continually deposit $9,000
at a time, that there’s some correlation between the amount
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	789
Cite as 277 Neb. 787

given and the reporting requirement.” Nevertheless, coun-
sel explained that Wintroub “didn’t think it mattered to him
whether . . . Storey was trying to avoid reporting require-
ments.” Wintroub stated:
I had no reason to be concerned about the transaction,
and from my point of view, I did not know or understand
that there was any prohibition on “structuring” financial
transactions to avoid the reporting requirements, or that
my making of those deposits was prohibited in any man-
ner, as I was not the one who structured the manner in
which the payments were made to me.
The court accepted Wintroub’s plea, concluding that at the
very least, Wintroub knowingly assisted in structuring a single
transaction of $27,000 when he deposited that amount over
the course of 3 consecutive days in cash deposits of $9,000
each. Wintroub was sentenced to 5 years’ probation with 5
months of home confinement. Wintroub did not appeal his fed-
eral conviction.
After the conviction, Counsel for Discipline filed formal
charges alleging that Wintroub had violated his oath of office
as an attorney and the following provisions of the Code of
Professional responsibility: Canon 1, Dr 1-102(A)(1) (vio-
lating disciplinary rule); Dr 1-102(A)(3) (engaging in ille-
gal conduct involving moral turpitude); and Dr 1-102(A)(4)
(engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation). A referee was appointed, and a hearing
was held. At the disciplinary hearing, Wintroub generally
accepted the factual basis for his felony conviction. He reiter-
ated, however, that he had believed he had no duty to report
his suspicion that Storey was structuring the payments so as to
avoid reporting.
Wintroub testified that he did not formally investigate
the legality of his actions, but instead simply “thought it
through myself.” Wintroub expressed his deep remorse and his
regret for not having investigated the legality of his actions
more thoroughly.
The referee found that Wintroub had violated Dr 1-102(A)(1),
(3), and (4). The referee noted that Wintroub had expressed
genuine remorse and did not know he was directly violating
790 	277 NEbrASkA rEPOrTS

any law. Nevertheless, the referee found that Wintroub had
committed a serious crime and had failed to conduct even the
simplest investigation into the legality of his conduct, because
he wished to receive the benefit of the payments. The referee
recommended that Wintroub be suspended from the practice of
law for 2 years.
2. CaSe No. S-07-942
Counsel for Discipline subsequently filed additional formal
charges against Wintroub. These formal charges are before us
as case No. S-07-942 and relate to Wintroub’s representation
of clients both before and after his suspension. For the sake of
clarity, we describe the charges upon which the referee found
disciplinary violations as they relate to individual clients.
(a) Andrea Franey
In February 2005, Andrea Franey retained Wintroub to rep-
resent her in a divorce action in Douglas County, Nebraska.
Wintroub tried the case in September 2005, and on October
13, the judge issued a letter decision and directed Wintroub
to prepare the decree. Wintroub never submitted a decree to
the judge, and in February 2006, Franey hired new counsel to
finally prepare the decree.
The formal charges alleged that Wintroub’s conduct violated
his oath of office as an attorney. The charges also alleged that
his conduct violated Neb. Ct. r. of Prof. Cond. §§ 3-501.3
and 3-501.4. Section 3-501.3 requires a lawyer to act with
diligence, and § 3-501.4 requires a lawyer to promptly com-
municate with a client.
In the referee’s final report, he noted Wintroub’s testimony
that after receiving the letter decision from the judge, Wintroub
prepared a decree and sent it to opposing counsel for approval.
The referee noted, however, that Wintroub failed to offer into
evidence a copy of any decree that he had prepared for Franey.
The referee found that Franey’s new attorney was able to con-
tact opposing counsel, who approved the decree that the new
attorney prepared. The referee concluded that Wintroub’s fail-
ure “to follow through in getting the Decree entered” violated
§§ 3-501.3 and 3-501.4.
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	791
Cite as 277 Neb. 787

(b) Scott Thompson
On June 20, 2005, Scott Thompson retained Wintroub
to represent him in a driving under the influence action.
Approximately 2 weeks later, Thompson terminated Wintroub’s
representation. A written fee agreement signed by Thompson
provided that he would pay Wintroub a $1,500 “non-refundable
flat fee,” and Thompson had paid Wintroub that amount. After
he terminated Wintroub’s representation, Thompson requested
a partial refund, and Wintroub stated he would look at the
amount of time he spent on the matter. No amount of the fee
was refunded to Thompson.
The formal charges alleged that Wintroub’s acts violated
his oath of office as an attorney and Neb. Ct. r. of Prof.
Cond. § 3-501.16(d), which provides that upon termination
of representation, a lawyer shall refund “any advance pay-
ment of fee or expense that has not been earned or incurred.”
because Wintroub’s acts occurred prior to September 1, 2005,
however, the applicable disciplinary rule is actually Canon 2,
Dr 2-110(A)(3),1 which provided that “[a] lawyer who with-
draws from employment shall refund promptly any part of a fee
paid in advance that has not been earned.” The two rules are
substantially similar.
The referee noted Wintroub testified that he met with
Thompson twice, prepared for an administrative license revoca-
tion hearing, and prepared a motion. However, Wintroub’s rep-
resentation was terminated prior to the hearing, and Wintroub
did not offer a copy of the motion he allegedly prepared as
evidence. The referee found that Wintroub violated the dis-
ciplinary rule when he did not complete the representation
of Thompson and did not refund any portion of the advance
fee payment. In arriving at this conclusion, the referee found
that Wintroub clearly received fees for work he did not do
for Thompson.
(c) robert Ginter
robert Ginter retained Wintroub on February 24, 2004.
A written fee agreement signed by Ginter provided for a
1 See State ex rel. Counsel for Dis. v. Switzer, 275 Neb. 881, 750 N.W.2d
681 (2008).
792 	277 NEbrASkA rEPOrTS

“non-refundable fee in the amount of $4,000.00” and for an
additional one-third contingency fee of any amounts recovered
in a lawsuit. Wintroub filed a complaint on behalf of Ginter
in the u.S. District Court on April 5, 2005. Ginter terminated
Wintroub’s representation on June 3 and requested a refund of
the unearned portion of the fee. No refund has been made.
The formal charges alleged that Wintroub’s conduct vio-
lated his oath of office as an attorney and Neb. Ct. r. of Prof.
Cond. § 3-501.1 (competence) and §§ 3-501.3 (diligence) and
3-501.16 (declining or terminating representation). We note
that because Wintroub’s conduct occurred prior to September
1, 2005, the charges should have been based on the Code of
Professional responsibility.2 It appears that the referee may
have recognized this, as he concluded that due to the conflicting
evidence in the record, the only disciplinary violation proved
by clear and convincing evidence was Wintroub’s neglect of a
legal matter for failing to timely file the complaint. The referee
cited the correct provision, Canon 6, Dr 6-101(A)(3), which
prohibits a lawyer from “[n]eglect[ing] a legal matter entrusted
to him or her.”
(d) Shari kearney
Wintroub represented Shari kearney in a lawsuit against
her employer. kearney sent Wintroub a check for $1,500
on February 6, 2006. The referee found that this was after
Wintroub was aware of his suspension from the practice of
law in Nebraska, which was effective January 19, 2006. After
Wintroub was suspended, his father, who is also an attorney,
continued to represent kearney, but ultimately, Wintroub’s
father advised her to find other counsel to continue her lawsuit.
kearney sought, but did not receive, a refund of a portion of
the $1,500 she paid to Wintroub.
The formal charges alleged that Wintroub violated his oath
of office as an attorney, §§ 3-501.3 (diligence), 3-501.4 (com-
munications), and 3-501.16 (declining or terminating represen-
tation), and Neb. Ct. r. of Prof. Cond. § 3-508.4 (misconduct).
The charges also alleged that Wintroub violated Neb. Ct. r. of
2 See id.
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	793
Cite as 277 Neb. 787

Prof. Cond. §§ 3-505.5 by engaging in the unauthorized prac-
tice of law in another jurisdiction and 3-507.3 by soliciting a
prospective client.
The 	referee 	was 	“particularly 	troubled” 	that 	Wintroub
accepted fees from kearney after “he clearly was aware he
had been suspended from the practice of law.” He found that
no refund was paid to kearney, even though Wintroub failed
to complete her case, and noted that Wintroub’s father testi-
fied that he thought kearney should be given a refund. The
referee found that it was clear that Wintroub received fees
from kearney for work he did not perform and concluded that
Wintroub’s conduct violated §§ 3-501.3 (diligence), 3-501.4
(communications), 	and 	3-501.16 	(declining 	or 	terminat-
ing representation).
(e) Trent Jindra
After his suspension, Wintroub operated Wintroub Consulting
Services. On August 16, 2006, Wintroub was retained by Trent
Jindra to assist in the collection of a past-due business debt.
Wintroub sent a collection letter on behalf of Jindra. At the
time, Wintroub was not licensed as a collection agent.
The formal charges alleged that Wintroub’s conduct vio-
lated his oath of office as an attorney and § 3-508.4 (miscon-
duct). The referee found that Wintroub acted as a collection
agent for Jindra after he had been suspended. The referee
found Wintroub’s testimony about being unaware that he was
required to be licensed in order to act as a collection agent “not
credible.” He found Wintroub’s assertions that he had consulted
a law professor and a lawyer about the need to be licensed and
told there was no such requirement to be “very troublesome”
and “totally unworthy of credibility.” The referee concluded
that Wintroub’s conduct violated § 3-508.4.
(f) Other Charges and Findings
The formal charges also alleged that Wintroub violated
disciplinary rules in his representation of another client and
did not timely respond to the Counsel for Discipline. The
referee found there was insufficient evidence to support these
allegations. In his final decision, the referee referenced a prior
794 	277 NEbrASkA rEPOrTS

disciplinary action against Wintroub that had been dismissed
and the pending action in case No. S-05-1518. The referee also
specifically noted Wintroub’s failure to provide documentary
evidence to support his testimony. The referee ultimately recom-
mended that Wintroub be suspended from the practice of law
for a period of 3 years.
III. ExCEPTIONS
1. CaSe No. S-05-1518
In case No. S-05-1518, Counsel for Discipline asserts that
the 2-year suspension recommended by the referee is too
lenient. Wintroub, on the other hand, asserts that he did not
violate the Code of Professional responsibility, because the
conduct underlying his felony conviction does not implicate
his honesty, trustworthiness, or fitness to practice law. He also
argues that a 2-year suspension is excessive.
2. CaSe No. S-07-942
Counsel for Discipline filed no exceptions in case No.
S-07-942. Wintroub filed 11, and asserts, restated, that the
referee erred in (1) finding he failed to get the divorce decree
finalized for Franey, (2) finding he did not adequately rep-
resent Thompson and did not refund an unearned portion of
an advance fee payment, (3) finding he failed to file a com-
plaint for Ginter for over a year after he had been retained,
(4) finding he violated disciplinary rules with regard to his
representation of kearney, (5) finding he accepted fees from
kearney after he was aware that he had been suspended from
the practice of law, (6) finding he attempted to collect a debt
for Jindra when not licensed to do so, (7) finding he failed
to refund fees for work which he did not do to Thompson
and kearney, (8) finding his testimony about the need to
have a license to collect debts not to be credible, (9) relying
on previous disciplinary cases involving Wintroub that had
been dismissed or that were pending, (10) considering that
Wintroub presented no evidence to corroborate his testimony
on the work he did for former clients, and (11) recommending
a sanction that was unduly severe given the facts and circum-
stances of the case.
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	795
Cite as 277 Neb. 787

IV. STANDArD OF rEVIEW
[1] 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.3 When
credible evidence is in conflict on material issues of fact, how-
ever, 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.4
V. ANAlYSIS
1. violatioNS
[2] In our de novo review, we first consider what violations
occurred. In order to sustain a charge in a lawyer discipline
proceeding, we must find the charge to be established by clear
and convincing evidence.5 We limit our review to the disciplin-
ary violations found by the referee and to which Wintroub has
taken exception.
because the conduct in case No. S-05-1518 occurred prior
to the September 1, 2005, effective date of the Nebraska rules
of Professional Conduct, the charges in that case are governed
by the now-superseded Code of Professional responsibility.6
The conduct leading to the charges in case No. S-07-942
occurred both before and after September 1, 2005. Thus,
although 	Counsel 	for 	Discipline 	charged 	Wintroub 	under
the Nebraska rules of Professional Conduct, we will apply
the superseded Code of Professional responsibility to those
acts occurring prior to the effective date of the rules of
Professional Conduct.7
3 State ex rel. Counsel for Dis. v. Riskowski, 272 Neb. 781, 724 N.W.2d 813
(2006).
4 See State ex rel. Counsel for Dis. v. Scott, 275 Neb. 194, 745 N.W.2d 585
(2008).
5 See State ex rel. Counsel for Dis. v. Herzog, ante p. 436, 762 N.W.2d 608
(2009).
6 See State ex rel. Counsel for Dis. v. Switzer, supra note 1.
7 Id.
796 	277 NEbrASkA rEPOrTS

(a) Case No. S-05-1518
The facts leading up to Wintroub’s felony conviction and
the subsequent disciplinary proceedings in case No. S-05-1518
are largely undisputed. Wintroub claims, however, that his
actions did not violate any disciplinary rule. In particular,
Wintroub emphasizes that he did not know it was illegal
to assist in structuring transactions, and he argues that the
actions that led to his conviction were not inherently immoral,
characterizing his criminal acts as “‘technical.’”8 Wintroub
points out that under Dr 1-102(A)(3), not all illegal conduct
is subject to discipline, but only illegal conduct “involving
moral turpitude.” Wintroub asserts his conduct did not involve
moral turpitude and did not involve “dishonesty, fraud, deceit,
or misrepresentation,” as was required under Dr 1-102(A)(4).
We disagree.
While the original enactment of 31 u.S.C. § 5324 required
that the defendant act with knowledge that structuring was
unlawful,9 most courts hold that § 5324, as amended,10 now
requires only that the following elements be met in order to
sustain a conviction: (1) the defendant in fact engaged in acts
of structuring, (2) he or she did so with knowledge that the
financial institutions involved were legally obligated to report
currency transactions in excess of $10,000, and (3) he or she
acted with intent to evade that reporting requirement.11 The
record in this case demonstrates that the u.S. District Court
convicted Wintroub with this understanding of the elements of
the offense.
Contrary to Wintroub’s characterization, § 5324 is not a
strict liability or merely a “technical” crime. Section 5324
8 brief for respondent in case No. S-05-1518 at 16.
9 See Ratzlaf v. United States, 510 u.S. 135, 114 S. Ct. 655, 126 l. Ed. 2d
615 (1994).
10 Money laundering Suppression Act of 1994, Pub. l. No. 103-325, § 411(a)
and (c)(1), 108 Stat. 2160, 2253 (codified at 31 u.S.C. §§ 5322(a) and (b)
and 5324 (2000)).
11 See, U.S. v. MacPherson, 424 F.3d 183 (2d Cir. 2005); U.S. v. Pang, 362
F.3d 1187 (9th Cir. 2004); U.S. v. Gabel, 85 F.3d 1217 (7th Cir. 1996). but
see U.S. v. Noske, 117 F.3d 1053 (8th Cir. 1997).
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	797
Cite as 277 Neb. 787

requires the mens rea of knowing of the bank reporting
requirements and knowingly circumventing those require-
ments. Thus, Wintroub’s conviction establishes that he know-
ingly hid his cash transaction with Storey from the govern-
ment, knowing the government wished to be informed of
the transaction.
It is true that “currency structuring is not inevitably nefari-
ous,”12 but we conclude that knowingly assisting in a scheme
to evade government-mandated reporting requirements, without
even inquiring into the reasons for such subterfuge, is contrary
to concepts of honesty and good morals, and thus involves
moral turpitude.13
[3] We reject any argument by Wintroub that simply because
he was unaware that his actions were subject to criminal pen-
alties, those actions cannot constitute a crime of moral turpi-
tude. Since 1986, it has been a crime to structure a financial
transaction to evade the reporting law.14 We have repeatedly
recognized the maxim that ignorance of the law is not an
excuse.15 This maxim applies with even greater emphasis to an
attorney who is expected to be learned in the law.16 Generally,
a judgment of conviction of a felony or misdemeanor involv-
ing moral turpitude, whether or not by plea agreement, is
conclusive upon the lawyer in a disciplinary proceeding and is
sufficient to authorize the court to impose discipline.17 We find
there is clear and convincing evidence that Wintroub violated
Dr 1-102(A)(3).
We also find there is clear and convincing evidence that
Wintroub violated Dr 1-102(A)(4), which prohibits a lawyer
12 Ratzlaf v. United States, supra note 9, 510 u.S. at 144.
13 State ex rel. NSBA v. Mahlin, 252 Neb. 985, 568 N.W.2d 214 (1997); State
ex rel. NSBA v. Caskey, 251 Neb. 882, 560 N.W.2d 414 (1997).
14 31 u.S.C. § 5324 (Supp. V 1987).
15 See State ex rel. Nebraska State Bar Assn. v. Hollstein, 202 Neb. 40, 274
N.W.2d 508 (1979).
16 Id.
17 See, State ex rel. NSBA v. Brown, 251 Neb. 815, 560 N.W.2d 123 (1997);
State ex rel. Nebraska State Bar Assn. v. Leonard, 212 Neb. 379, 322
N.W.2d 794 (1982).
798 	277 NEbrASkA rEPOrTS

from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation. Assisting in the deliberate concealment of
a transaction over $10,000 is deceitful. because Wintroub vio-
lated Dr 1-102(A)(3) and (4), we likewise find that Wintroub
violated Dr 1-102(A)(1) (violating disciplinary rule).
[4] Although Wintroub points out that he was not acting
as a lawyer when he committed the acts leading to the viola-
tions, we have said that offenses committed by an attorney
in his capacity as a private individual and not in any profes-
sional capacity will nevertheless justify disciplinary proceed-
ings if the misconduct is indicative of moral unfitness for the
profession.18 We conclude that Wintroub’s actions leading to
his felony conviction, which stemmed from deliberately turn-
ing a blind eye to the law, are indicative of moral unfitness
for the profession. Thus, Wintroub is properly subject to dis-
cipline. before determining what that discipline should be, we
address the additional violations found by the referee in case
No. S-07-942.
(b) Case No. S-07-942
(i) Franey
The 	referee 	found 	clear 	and 	convincing 	evidence 	that
Wintroub failed to act diligently in representing Franey and
failed to communicate with her. Wintroub argues that the
referee’s findings are not supported by clear and convinc-
ing evidence.
We agree that there is no clear and convincing evidence that
Wintroub failed to communicate with Franey, as the record
contains very little evidence about his communications with
her. We find, however, that there is clear and convincing evi-
dence that Wintroub failed to act with due diligence in procur-
ing the final divorce decree. Wintroub contends the evidence is
undisputed, based on his testimony, that he did submit a decree
to opposing counsel after receiving the letter decision from
18 See, State ex rel. Counsel for Dis. v. Hughes, 268 Neb. 668, 686 N.W.2d
588 (2004); State ex rel. NSBA v. Brown, supra note 17; State ex rel. NSBA
v. Leonard, supra note 17; State ex rel. NSBA v. Fitzgerald, 165 Neb. 212,
85 N.W.2d 323 (1957).
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	799
Cite as 277 Neb. 787

the judge but did not receive a response. However, it is clear
from the referee’s findings that he found Wintroub’s testimony
on this issue lacked credibility. It is equally clear that no final
decree was procured until Franey hired separate counsel. based
on the record before us, we conclude that Wintroub failed to
act with due diligence because he failed to procure the final
divorce decree for Franey, thus violating § 3-501.3 of the
Nebraska rules of Professional Conduct.
(ii) Thompson
The referee made a specific finding that Wintroub received
fees for work he did not do for Thompson and that this receipt
of unearned fees and failure to complete Thompson’s represen-
tation violated § 3-501.16(d). Again, we note that the appli-
cable disciplinary provision is actually Dr 2-110(A)(3), which
is substantially similar to § 3-501.16(d).
The evidence in the record is that Thompson terminated
Wintroub’s representation before Wintroub could complete the
representation, and thus, the referee’s finding that Wintroub
committed a disciplinary violation by failing to complete
Thompson’s representation is not supported by clear and con-
vincing evidence. The record does, however, support the ref-
eree’s finding that Wintroub received fees for work he did
not perform for Thompson. Although Wintroub testified that
he performed extensive services for Thompson, the referee
implicitly found this testimony to lack credibility. Wintroub
was employed by Thompson for only approximately 2 weeks,
and there is no documentary evidence of any services per-
formed for Thompson. We defer to the referee’s judgment of
Wintroub’s credibility and conclude that there is clear and con-
vincing evidence that Wintroub did not earn the entire $1,500
fee he received from Thompson.
[5] Wintroub contends that the fee agreement Thompson
signed clearly provided for a nonrefundable fee and that
because such an agreement does not violate any disciplin-
ary rules, he is not subject to discipline, even if he did not
earn the entire fee he received from Thompson. We disagree.
Pursuant to Dr 2-110(A)(3), a lawyer must “refund promptly
any part of a fee paid in advance that has not been earned.”
800 	277 NEbrASkA rEPOrTS

When interpreting similar ethical and disciplinary rules, other
courts have concluded that a lawyer may not retain an unearned
fee, even if the fee agreement clearly provides that the fee is
nonrefundable.19 In doing so, some courts have concluded that
nonrefundable fee agreements are invalid per se.20 Most courts
find that nonrefundable fee agreements are not invalid per se,
but nevertheless refuse to enforce the “nonrefundable” aspect
of the agreement on a case-by-case basis if the amount of the
agreed-upon fee is not actually earned by the attorney.21
In the instant case, we need not resolve whether a non-
refundable fee agreement is unenforceable per se, because the
fee agreement before us is unenforceable under either rule. We
note that this is not a case involving a “general” retainer paid in
order to secure a lawyer’s availability,22 and we offer no opin-
ion on the enforceability of a nonrefundable fee agreement in
that context. We conclude there was clear and convincing evi-
dence that Wintroub violated Dr 2-110(A)(3) when he retained
fees paid by Thompson that he did not earn.
(iii) Ginter
The referee found that Wintroub committed neglect by fail-
ing to file the Ginter complaint in a timely manner. Wintroub
contends that this violation was not supported by clear and
convincing evidence. He contends that the Ginter complaint
involved a wrongful termination lawsuit in federal court
19 See, In re Miles, 335 S.C. 242, 516 S.E.2d 661 (1999); Matter of
Hirschfeld, 192 Ariz. 40, 960 P.2d 640 (1998); Iowa Supreme Court Bd.
of Ethics v. Apland, 577 N.W.2d 50 (Iowa 1998); Columbus Bar Assn. v.
Klos, 81 Ohio St. 3d 486, 692 N.E.2d 565 (1998); Matter of Thonert, 682
N.E.2d 522 (Ind. 1997); Matter of Cooperman, 83 N.Y.2d 465, 633 N.E.2d
1069, 611 N.Y.S.2d 465 (1994); In re Gastineau, 317 Or. 545, 857 P.2d
136 (1993); Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736
(Tex. App. 2007); Wright v. Arnold, 877 P.2d 616 (Okla. App. 1994).
20 See, Iowa Supreme Court Bd. of Ethics v. Apland, supra note 19; Matter
of Cooperman, supra note 19; In re Gastineau, supra note 19; Wright v.
Arnold, supra note 19.
21 See, In re Miles, supra note 19; Matter of Hirschfeld, supra note 19;
Columbus Bar Assn. v. Klos, supra note 19; Matter of Thonert, supra note
19; Cluck v. Commission for Lawyer Discipline, supra note 19.
22 See 1 robert l. rossi, Attorneys’ Fees § 1.2 at 7 (2d ed. 1995).
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	801
Cite as 277 Neb. 787

“which all lawyers know is a substantial undertaking.”23 We
conclude that there is not clear and convincing evidence to
support this violation. There is conflicting evidence in the
record as to what services Wintroub performed for Ginter,
and we are unable to say from the record that a 1-year delay
in filing what appears to be a complicated legal action consti-
tutes neglect.
(iv) Kearney
The referee found that Wintroub’s conduct with respect to
his representation of kearney violated §§ 3-501.3 (diligence),
3-501.4 (communications), and 3-501.16 (declining or ter-
minating representation). The referee made a factual finding
that Wintroub accepted fees from kearney “after he clearly
was aware he had been suspended from the practice of law.”
Implicit in this factual finding is the referee’s rejection of
Wintroub’s contention that the $1,500 paid by kearney was for
work he performed for her prior to February 2006.
We conclude that there is no clear and convincing evidence
that Wintroub either failed to communicate with kearney or
failed to diligently work on her case, as the record is almost
entirely silent on these issues. We conclude, however, that there
is clear and convincing evidence that Wintroub received fees
from kearney in February 2006, after he had been suspended,
and retained fees that he did not earn. The record thus supports
the finding that he violated § 3-501.16.
(v) Jindra
The referee concluded that Wintroub violated § 3-508.4
by acting as a collection agent without a license after his law
license was suspended. Wintroub contends that he may have
made a mistake in not being licensed as a debt collector and
in relying on legal advice that he need not be licensed, but
that there was no intentional wrongdoing, and that thus, the
evidence is not clear and convincing to support this allega-
tion. The referee found that Wintroub’s testimony on this issue
was not credible, and we conclude that clear and convincing
23 brief for respondent in case No. S-07-942 at 10.
802 	277 NEbrASkA rEPOrTS

evidence supports the referee’s finding that Wintroub violated
§ 3-508.4.
(vi) Other Findings
Wintroub argues that the referee improperly referenced both
a prior disciplinary case against him that was ultimately dis-
missed and the pending action in case No. S-05-1518 when rec-
ommending the sanction to be imposed in case No. S-07-942.
Although the referee noted these actions in his report, it is clear
that they were not the sole basis for the recommended sanction.
Further, imposition of the ultimate sanction on Wintroub is a
function of this court in this proceeding, and thus, any error
committed by the referee is inconsequential.
Wintroub also argues that the referee improperly shifted
the burden of proof to him by requiring him to present docu-
mentary evidence in support of his testimony. We construe the
referee’s comments on the lack of documentary evidence in the
record to relate solely to his finding that Wintroub’s testimony
lacked credibility and do not view this as an improper shifting
of the burden of proof. These exceptions are without merit.
2. SaNCtioNS
[6-8] We turn now to the appropriate discipline for the
violations that have been established by clear and convincing
evidence in these two cases. To determine whether and to what
extent discipline should be imposed in a lawyer discipline pro-
ceeding, 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.24 The determination of an appropriate penalty to be
imposed on an attorney in a disciplinary proceeding requires
the consideration of any aggravating or mitigating factors.25
24 See, State ex rel. Counsel for Dis. v. Wickenkamp, ante p. 16, 759 N.W.2d
492 (2009); State ex rel. Counsel for Dis. v. Hubbard, 276 Neb. 741, 757
N.W.2d 375 (2008).
25 See State ex rel. Counsel for Dis. v. Orr, ante p. 102, 759 N.W.2d 702
(2009).
STATE Ex rEl. COuNSEl FOr DIS. v. WINTrOub 	803
Cite as 277 Neb. 787

Each attorney discipline case must be evaluated individually in
light of its particular facts and circumstances.26
[9] between these two cases, we have found clear and
convincing evidence that Wintroub has violated at least seven
different disciplinary rules. Cumulative acts of attorney mis-
conduct are distinguishable from isolated incidents, therefore
justifying more serious sanctions.27 The records in these two
cases reflect a pattern of misconduct involving not only neglect,
but also deceit for personal gain.
Wintroub’s felony conviction for assisting in hiding a large
cash transaction from the federal government is far from
merely “technical.” It was dishonest. Moreover, as an attorney,
Wintroub has an obligation to uphold the laws of the united
States.28 Wintroub never made any inquiry into the legality of
his actions, despite the fact that he was aware he was circum-
venting federal reporting procedures. Neither did Wintroub
investigate whether he might be assisting in the laundering
of illegal drug money, despite his admission that he found it
suspicious that Storey gave him cash only in amounts less
than $10,000. His failure to question his actions resulted in a
grievous breach of professional ethics. His conviction violates
basic notions of honesty and endangers public confidence in
the legal profession.
Wintroub’s failure to investigate the legality of his actions
as a debt collector illustrates his continued indifference to the
rule of law. The record also reveals a consistent pattern of
ethical violations related to Wintroub’s representation of cli-
ents. Wintroub failed to complete Franey’s representation, and
we, like the referee, are particularly troubled that he retained
fees he did not earn from Thompson and kearney, and even
accepted fees from kearney after he was aware he had been
suspended from the practice of law in this state.
26 Id.
27 State ex rel. Counsel for Dis. v. Wadman, 275 Neb. 357, 746 N.W.2d 681
(2008); State ex rel. Counsel for Dis. v. Beach, 272 Neb. 337, 722 N.W.2d
30 (2006).
28 See State ex rel. Counsel for Dis. v. Boose, ante p. 1, 759 N.W.2d 110
(2009).
804 	277 NEbrASkA rEPOrTS

Wintroub testified that he sincerely regretted not inquiring
into the legality of structuring cash transactions, but his consis-
tent and cumulative violations of our disciplinary rules reflects
a general failure to fully comprehend the nature of his conduct.
Considering the need to protect the public, the need to deter
others, the reputation of the bar as a whole, Wintroub’s fitness
to practice law, and the aggravating and mitigating circum-
stances, we conclude that Wintroub should be disbarred from
the practice of law.
VI. CONCluSION
There is clear and convincing evidence in case No. S-05-1518
that Wintroub violated Dr 1-102(A)(1), (3), and (4) of the
Code of Professional responsibility. likewise, in case No.
S-07-942, there is clear and convincing evidence that he vio-
lated Dr 2-110(A)(3) and §§ 3-501.3, 3-501.16, and 3-508.4
of the Nebraska rules of Professional Conduct. It is therefore
the judgment of this court that Wintroub is disbarred from the
practice of law in the State of Nebraska, effective immediately.
Wintroub is directed to comply with Neb. Ct. r. § 3-316, and
upon failure to do so, he shall be subject to punishment for
contempt of this court. Wintroub is further 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 DiSbarmeNt.
miller-lermaN, J., participating on briefs in No. S-07-942.
heaviCaN, C.J., not participating.
STATE v. HEDGCOCk 	805
Cite as 277 Neb. 805
State of NebraSka , appellee , v.
parry heDgCoCk , appellaNt.
765 N.W.2d 469
Filed May 22, 2009. 	No. S-07-617.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part