State ex rel. Counsel for Dis. v. Nich

into court here. To hold otherwise would, we believe, offend
notions of fair play and substantial justice, and would violate
due process.
Although the district court failed to make this determina-
tion, we conclude the record is sufficient to show that the court
improperly exercised personal jurisdiction over Whitmire.
D iscovery A rguments
Because the court lacked personal jurisdiction, Ashby’s
assignment of error regarding his motion to compel Whitmire
to answer discovery questions is not before us. And while
Ashby also argues that the Blacks and Erickson & Sederstrom’s
designated attorney should be compelled to answer questions
regarding both Whitmire’s representation of the Blacks and
Washburn’s representation of Kilmer, we do not consider issues
which Ashby argued but has not assigned.82
ConCluSion
We conclude that the district court lacked jurisdiction over
Whitmire and that the district court properly dismissed Ashby’s
claims against the remaining defendants.
A ffirmeD.
Wright, J., not participating.
82 Vokal v. Nebraska Acct. & Disclosure Comm., 276 neb. 988, 759 n.W.2d
75 (2009); Agena v. Lancaster Cty. Bd. of Equal., 276 neb. 851, 758
n.W.2d 363 (2008).
stAte of nebrAskA ex rel . counsel for D iscipline of
the nebrAskA supreme court, relAtor , v.
DAviD l. nich , Jr ., responDent.
780 n.W.2d 638
Filed March 5, 2010. 	no. S-09-593.
original action. Judgment of suspension.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArD, 	stephAn,
mccormAck , and miller-lermAn, JJ.
STATE Ex rEl. CounSEl For diS. v. niCh 	533
Cite as 279 neb. 533
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

per curiAm.
inTroduCTion
The office of the Counsel for discipline of the nebraska
Supreme Court filed formal charges against respondent, david
l. nich, Jr. After a formal hearing, the referee concluded that
nich had violated the nebraska rules of Professional Conduct
and his oath of office as an attorney, and recommended a
suspension of 6 months. neither party filed exceptions to
the referee’s report, and the Counsel for discipline moved
for judgment on the pleadings under the nebraska rules of
Professional Conduct, see neb. Ct. r. § 3-310(l). We grant the
motion for judgment on the pleadings and impose discipline as
indicated below.
STATEMEnT oF FACTS
on June 16, 2009, formal charges were filed by the office
of the Counsel for discipline against nich, alleging that nich
had violated the following provisions of the nebraska rules of
Professional Conduct: neb. Ct. r. of Prof. Cond. §§ 3-501.1
(competence), 3-501.3 (diligence), 3-501.4 (communications),
3-501.16 (declining or terminating representation), 3-503.2
(expediting litigation), and 3-508.1 (bar admission and disci-
plinary matters).
A referee’s hearing was held on october 20, 2009. nich,
acting pro se, testified at the hearing. in addition, two exhibits
were introduced. The record in this case reveals the following
facts: nich was admitted to the practice of law in the State of
nebraska on September 20, 2000. he has been in private prac-
tice since the date of his admission.
The formal charges filed against nich on June 16, 2009,
contain two counts. Both pertain to nich’s representation of
two clients in domestic relations cases.
Count i pertains to a client, Cheryl Jones. in February
2008, nich and his partner were retained by Jones to represent
her in a marriage dissolution action filed by Jones’ husband.
Temporary child support was awarded to Jones, but in the fall
of 2008, Jones learned that her son’s Social Security benefits
would be adversely affected based on the amount of child
534 	279 nEBrASKA rEPorTS

support awarded, so she asked nich to seek a modification of
the child support award.
on october 24, 2008, nich filed a motion for modifica-
tion, and an agreement was reached with opposing counsel on
november 21. The judge assigned to the case instructed nich
to prepare the appropriate order memorializing the agreement.
nich did not prepare or file the order as he had been instructed
to do by the court. Jones made numerous attempts to contact
nich by telephone and e-mail to check on the status of the
amended order, but was unable to speak to him. Finally, Jones
was forced to hire new counsel and filed her grievance with the
Counsel for discipline.
Count ii in the formal charges pertained to another client,
Joy Budin. on August 5, 2008, nich was retained by Budin to
represent her in divorce proceedings. during the initial meet-
ing, nich collected needed information and said that he would
prepare documents for Budin’s signature and that they would
meet again on August 12. nich failed to meet with Budin on
August 12, due to his alleged car trouble. Budin spent the day
trying to speak to nich and finally was able to speak to him
late in the day on August 12. nich told Budin that he would
send her the paperwork for her to sign. By August 18, Budin
had not received the paperwork, so she again called nich to
inquire about her case. nich said he thought he had mailed it
to her but would do so again. Budin received the documents
a few days later, signed them, and returned them immediately
to nich.
hearing 	nothing 	further, 	Budin 	called 	nich 	again 	on
September 5, 2008. nich told Budin her case had been filed.
on September 8, while applying for a protection order, Budin
was told by court personnel that her case had not been filed.
Budin spent the rest of the day trying to contact nich but was
not able to talk to him until September 9, when nich assured
Budin that her case had been, in fact, filed by him. nich prom-
ised to fax Budin copies of the file-stamped documents but did
not do so that day.
Budin called and left a message for nich that he was to
do nothing further until she could speak directly to him. on
STATE Ex rEl. CounSEl For diS. v. niCh 	535
Cite as 279 neb. 533

September 15, 2008, Budin called nich’s office and he pro-
vided Budin a case number indicating that her case had been
filed with the court. She then called the court and was told that
the case number was for a case filed by nich, but it was not her
case. Shortly thereafter, someone from the clerk’s office called
her back and said that the clerk’s office had just received an
envelope from nich with her documents in it and that the enve-
lope was postmarked September 12. Budin then called nich
and demanded her file and a refund of her retainer. nich said
he would compute his fee, then mail her a refund.
on September 24, 2008, Budin called nich’s office to
inquire about the current status of the refund. nich said he
would get it to her by September 26. on october 2, Budin
e-mailed nich, again inquiring into the status of the refund,
and he did not respond.
in late october 2008, Budin filed with the Counsel for
discipline her grievance, which was then sent by certified
mail to nich on october 30 and served on him on november
3. on december 12, nich advised the Assistant Counsel
for discipline that he had finished his written response and
that he was prepared to send the refund to Budin and would
do so.
on 	January 	8, 	2009, 	Budin 	notified 	the 	Counsel 	for
discipline that she had not received a letter from nich or a
refund check.
in the answer filed by nich with the Supreme Court on
August 20, 2009, nich admitted the factual basis of all para-
graphs and all counts as outlined in the complaint. At the ref-
eree hearing, nich testified that he had served in the u.S. Army
for approximately 5 years and was medically discharged after
being wounded in Panama. nich testified that he clerked for 2
years with an omaha attorney before being admitted to practice
law and was a paralegal for 8 years prior to that.
in his testimony, nich said he had been in private practice
since he was admitted to the bar in 2000. From 2000 to 2006,
he was a sole practitioner, and from 2006 to the present, he
had practiced with one or two other attorneys, mainly doing
criminal law work.
536 	279 nEBrASKA rEPorTS

in addition to practicing law, nich also teaches in the para-
legal program at Metropolitan Community College in omaha.
he handles many cases for clients on a pro bono basis, rely-
ing on his military pension and his income from teaching at
the college.
With regard to the allegations concerning count i, nich testi-
fied that the case was really his partner’s case and that the mes-
sages should have been given to her. he said it was a mixup
in his office for which he accepted full responsibility. he has
made changes in his office protocol, in that telephone messages
are now logged or recorded and sent to the client’s file. The
receptionist now makes sure that all calls are returned.
With respect to the allegations of count ii, nich blamed
many of the communication problems on his former reception-
ist. he also said that Budin did not pay him the full retainer
initially and that when he started issuing bills to Budin, she
became combative. he also said that whenever she called him,
she was on a speaker telephone with another unknown male
in the background. When nich would request that Budin take
him off speaker telephone, she would refuse to do that. nich
then informed her that he would be glad to speak to her face-
to-face or one-on-one but was not willing to speak to her on
the speaker telephone with the unidentified male listening in
the background.
nich further testified that in his written retainer agree-
ment with Budin, the terms of the agreement stated that the
retainer was earned upon the commencement of work, so he
transferred funds directly into his general account once he had
commenced working on the case. he said he held the letter
and refund check “‘for five days’” before mailing it, “maybe
even a week.” in actuality, it was several months later before
he sent it, because, he stated, he did not want to deal with this
“‘nasty client.’”
nich further testified that he did not file Budin’s petition for
dissolution, because the full retainer had not been paid by her.
So, even though it was signed on August 21, 2008, he did not
file it until September 15, and his request for the full retainer
still had not been complied with by that date.
STATE Ex rEl. CounSEl For diS. v. niCh 	537
Cite as 279 neb. 533

With regard to mitigating factors, nich testified that in 2006,
when the complaints started to be received by the Counsel for
discipline’s office, he had suffered a heart attack following
treatment for cancer in 2004 and 2005. he also said that he
went through a divorce in 2005 and had a falling out with an
attorney he had been sharing office space with in Papillion.
nich says he does a lot of pro bono work through the nebraska
State Bar Association’s Volunteer lawyers Project and handles
many criminal cases for little or no fee.
With regard to aggravating circumstances, the Counsel for
discipline offered exhibits 1 and 2. Each exhibit showed a
private reprimand. Exhibit 1 is a copy of a private reprimand
issued to nich by the Committee on inquiry of the Fourth
disciplinary district on February 4, 2006. Attached to exhibit 1
is a copy of the complaint that had been filed against nich on
december 7, 2005. nich was privately reprimanded for making
inappropriate statements against a lancaster County district
Court judge. in particular, the statements were made in con-
nection with a prisoner lawsuit in which nich represented the
plaintiffs. in that case, nich filed pleadings moving to alter or
amend an unfavorable ruling and, in the pleadings, employed
numerous personal attacks on the competence of the trial judge
presiding in the matter.
Exhibit 2 was another private reprimand issued by the
Committee on inquiry of the Fourth disciplinary district on
January 16, 2009, pertaining to a complaint made by a for-
mer client, Johnny Thomas. A copy of that complaint was
not attached to exhibit 2, but nich testified that Thomas had
lied during a deposition and that nich knew Thomas had lied.
rather than trying to give Thomas a chance to rehabilitate him-
self, nich terminated the deposition before it was finished, and
Thomas fired him immediately following that termination of
the deposition. Thomas then filed a grievance with the Counsel
for discipline. in its decision of January 16, the Committee on
inquiry found that there was clear and convincing evidence that
nich had violated neb. Ct. r. of Prof. Cond. §§ 3-501.6(a) and
3-503.3(a)(3), and nich was “‘strongly reprimanded.’”
538 	279 nEBrASKA rEPorTS

The referee found that exhibits 1 and 2, which were offered
and received into evidence without objection, were aggravating
circumstances in this matter.
The 	referee 	issued 	his 	report 	and 	recommendation 	on
december 21, 2009. in his report, the referee found that nich
had neglected legal matters entrusted to him by Jones and
Budin and concluded that nich had violated his oath of office
as an attorney licensed to practice law in the State of nebraska
as provided by neb. rev. Stat. § 7-104 (reissue 2007) and
had violated the following provisions of the nebraska rules of
Professional Conduct: §§ 3-501.1, 3-501.3, 3-501.4, 3-501.16,
3-503.2, and 3-508.1. Furthermore, the referee stated that nich
had been a member of the bar since September 20, 2000, and
had now faced discipline three times. The referee noted that he
found nich’s conduct in count ii particularly troubling, given
the untruthful statements nich made to his client, Budin, and
to the Counsel for discipline’s office with regard to refund-
ing Budin’s retainer, stating that additional charges could have
been brought for this conduct.
in reviewing the relevant case law, the referee concluded
that this case was similar to State ex rel. Counsel for Dis. v.
Wadman, 275 neb. 357, 746 n.W.2d 681 (2008), and State
ex rel. Counsel for Dis. v. Peters, 277 neb. 343, 762 n.W.2d
294 (2009), where the attorneys had neglected multiple mat-
ters. in both those cases, this court imposed discipline of a
6-month suspension. Applying Wadman and Peters to the case
at hand, the referee recommended that the Supreme Court sus-
pend nich from the practice of law for a period of 6 months.
The referee further recommended that at such time that nich
regains his license to practice law, he should be put under a
period of probation and strictly monitored by another licensed
nebraska attorney for a period of not less than 2 years fol-
lowing reinstatement. neither party filed written exceptions to
the referee’s report. on december 31, 2009, the Counsel for
discipline filed a motion for judgment on the pleadings. nich
did not file a response to this motion.
STATE Ex rEl. CounSEl For diS. v. niCh 	539
Cite as 279 neb. 533

AnAlYSiS
A proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Bouda, 278
neb. 380, 770 n.W.2d 648 (2009). To sustain a charge in a
disciplinary proceeding against an attorney, a charge must be
supported by clear and convincing evidence. Id. Violation of a
disciplinary rule concerning the practice of law is a ground for
discipline. Id.
As noted, neither party filed any written exceptions to
the referee’s report. Pursuant to § 3-310(l), the Counsel for
discipline filed a motion for judgment on the pleadings. When
no exceptions to the referee’s findings of fact are filed by
either party in an attorney discipline proceeding, the nebraska
Supreme Court may, in its discretion, consider the referee’s
findings final and conclusive. See State ex rel. Counsel for
Dis. v. Bouda, supra. Based upon the undisputed findings of
fact in the referee’s report, which we consider to be final and
conclusive, we conclude that the formal charges are supported
by clear and convincing evidence. We specifically conclude
that nich has violated his oath of office as an attorney and the
following provisions of the nebraska rules of Professional
Conduct: §§ 3-501.1, 3-501.3, 3-501.4, 3-501.16, 3-503.2, and
3-508.1. Accordingly, we grant the Counsel for discipline’s
motion for judgment on the pleadings.
We have stated that the basic issues in a disciplinary pro-
ceeding against an attorney are whether discipline should be
imposed and, if so, the type of discipline appropriate under the
circumstances. State ex rel. Counsel for Dis. v. Wickenkamp,
277 neb. 16, 759 n.W.2d 492 (2009). neb. Ct. r. § 3-304
provides that the following may be considered as discipline for
attorney misconduct:
(A) Misconduct shall be grounds for:
(1) disbarment by the Court; or
(2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to
suspension, on such terms as the Court may designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
540 	279 nEBrASKA rEPorTS

(6) Private reprimand by the Committee on inquiry or
disciplinary review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
We have stated that each attorney discipline case must be
evaluated individually in light of its particular facts and cir-
cumstances. State ex rel. Counsel for Dis. v. Wickenkamp,
supra. For purposes of determining the proper discipline of an
attorney, this court considers the attorney’s acts both underly-
ing the events of the case and throughout the proceeding. Id.
The determination of an appropriate penalty to be imposed
on an attorney in a disciplinary proceeding also requires the
consideration of any aggravating or mitigating factors. Id. We
have considered prior reprimands as aggravators. Id. Further,
cumulative acts of attorney misconduct are distinguishable
from isolated incidents, therefore justifying more serious sanc-
tions. State ex rel. Counsel for Dis. v. Wintroub, 277 neb. 787,
765 n.W.2d 482 (2009).
in this case, we have considered the referee’s report and
recommendation, the findings of which have been established
by clear and convincing evidence, and the applicable law. The
evidence in the present case establishes, among other facts,
that nich repeatedly failed to effectively communicate with
his clients and failed to make the proper court filings to pro-
gress his clients’ cases. The record further shows that nich was
dishonest and misrepresented to Budin and the Counsel for
discipline information regarding his handling of the refunding
of Budin’s retainer.
As to mitigating factors, we note that nich was experiencing
personal problems prior to and at the time grievances against
him were being investigated by the Counsel for discipline and
that he cooperated with the Counsel for discipline during the
disciplinary proceedings. however, as to aggravating factors,
we note that the Counsel for discipline provided evidence of
two prior private reprimands, which indicate cumulative acts of
misconduct and support a more severe sanction.
We have considered the record, the findings which have
been established by clear and convincing evidence, and the
STATE Ex rEl. CounSEl For diS. v. niCh 	541
Cite as 279 neb. 533

applicable law. Based upon our consideration of the record in
this case, this court finds that nich should be and hereby is
suspended from the practice of law for a period of 6 months,
effective immediately. nich shall comply with neb. Ct. r.
§ 3-316 and, upon failure to do so, shall be subject to a pun-
ishment for contempt of this court. At the end of the 6-month
suspension period, nich may apply to be reinstated to the
practice of law, provided that nich has demonstrated his com-
pliance with § 3-316 and further provided that the Counsel for
discipline has not notified this court that nich has violated any
disciplinary rule during his suspension. upon reinstatement,
nich shall be placed on probation and supervised for a period
of 2 years by another attorney admitted to the nebraska bar.
We also direct nich to pay costs and expenses in accordance
with neb. rev. Stat. §§ 7-114 and 7-115 (reissue 2007) and
§ 3-310(P) and neb. Ct. r. § 3-323(B) within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
ConCluSion
The Counsel for discipline’s motion for judgment on the
pleadings is sustained. We adopt the referee’s findings of fact
and conclude that nich has violated the nebraska rules of
Professional Conduct and his oath of office as an attorney.
it is the judgment of this court that nich should be and
hereby is suspended from the practice of law for 6 months,
effective immediately, and that upon reinstatement to the bar,
nich shall be supervised for a period of 2 years by an attorney
licensed to practice law in the State of nebraska.
JuDgment of suspension.
542 	279 nEBrASKA rEPorTS