State ex rel. Counsel for Dis. v. Palik

STATE EX REL. COUNSEL FOR DIS. v. PALIK 	353
Cite as 284 Neb. 353
State of NebraSka ex rel. C ouNSel for D iSCipliNe of
the NebraSka Supreme C ourt, relator, v.
D ouglaS D. palik, reSpoNDeNt.
820 N.W.2d 862
Filed September 21, 2012. 	No. S-11-257.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The basic issues in a disciplinary proceeding against an attorney are
whether the Nebraska Supreme Court should impose discipline and, if so, the
appropriate discipline under the circumstances.
3. ____. Under Neb. Ct. R. § 3-304, the Nebraska Supreme Court may impose one
or more of the following disciplines: (1) disbarment; (2) suspension; (3) proba-
tion in lieu of or subsequent to suspension, on such terms as the court may des-
ignate; or (4) censure and reprimand.
4. ____. To determine whether and to what extent discipline should be imposed in
an attorney 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.
5. ____. In imposing attorney discipline, the Nebraska Supreme Court evaluates
each case in light of its particular facts and circumstances.
6. ____. In determining the proper discipline of an attorney, the Nebraska Supreme
Court considers the attorney’s acts both underlying the events of the case and
throughout the proceeding.
7. ____. When determining appropriate discipline, the Nebraska Supreme Court
considers aggravating and mitigating factors.
8. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents and justify more serious sanctions.
Original action. Judgment of suspension.
Kent L. Frobish, Assistant Counsel for Discipline, for relator.
Douglas D. Palik, pro se.
heaviCaN, C.J., Wright, C oNNolly, StephaN, mCC ormaCk,
and miller-lermaN, JJ.
per C uriam.
The Counsel for Discipline of the Nebraska Supreme Court
(the Relator) filed formal charges against Douglas D. Palik, an
attorney licensed since 1984. The Relator alleged that Palik
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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354 	284 NEBRASKA REPORTS
had lied to the son of a distributee of a will to cover up Palik’s
procrastination and incompetence in his administration of the
estate. The referee recommended that Palik be suspended for 1
year with a 1-year probationary term to follow upon reinstate-
ment. The Relator filed exceptions to the referee’s report and
argues that this sanction is too lenient. Palik’s behavior and
the mitigating factors presented convince us that the referee’s
recommended sanctions are appropriate, provided that Palik
makes good on his proffered restitution to both his client and
the distributee’s son. Assuming that such restitution will be
made, we impose a 1-year suspension upon Palik, to be fol-
lowed by a 1-year term of probation.
BACKGROUND
The Relator’s formal charges alleged that Palik violated
his oath of office as an attorney1 and the following provi-
sions 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), 3-504.1 (truthfulness
in statements to others), and 3-508.4 (misconduct). Palik
admitted to the underlying facts and the violations. The ref-
eree found that Palik had violated his oath of office and the
professional rules.
Palik has not taken any exceptions to the referee’s report.
And if no exceptions are taken to the referee’s findings of fact,
we may consider them final and conclusive.2 Accordingly, in
our presentation of the facts, we draw heavily from the ref-
eree’s findings of fact.
On March 6, 2007, Blanche Thompson passed away, leav-
ing an estate of $1.7 million. Her will named William Olson
as personal representative. Olson hired Palik to assist him in
administering the estate, and on May 22, Palik filed a petition
for formal probate. On May 23, 2008, over a year later, the
county court judge ordered Palik to file an inventory for the
estate. Palik filed the inventory on June 25. Along with the
1 See Neb. Rev. Stat. § 7-104 (Reissue 2007).
2 State ex rel. Counsel for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d 433
(2010); Neb. Ct. R. § 3-310(L).

STATE EX REL. COUNSEL FOR DIS. v. PALIK 	355
Cite as 284 Neb. 353
inventory, he also filed a petition for the determination of an
inheritance tax and a tax worksheet.
Under Blanche’s will, Mary Jane Thompson was to receive
$60,000. On about November 9, 2007, Olson gave Palik a
check to send to Mary Jane, who lived in Texas. Inexplicably,
Palik did not mail this check until June 25, 2008. And he did
not tell Olson that he had not sent the check. In fact, the previ-
ously mentioned tax worksheet, filed on June 25, stated that
Mary Jane had received the money from the estate, which was
not true at that time.
At some point after Mary Jane received her check, Palik
received a call from Mary Jane’s son, Jerome Thompson.
Jerome told Palik that Mary Jane, who was elderly, wished to
renounce her share so that the $60,000 would pass directly to
Jerome. Accordingly, Palik prepared a renunciation document
and sent it to Mary Jane. Mary Jane signed the document and
returned it to Palik, along with the $60,000 check. Palik, how-
ever, did not tell Olson about Mary Jane’s wish to renounce
her inheritance or the return of the check. Furthermore, Palik
seemingly failed to realize that to be effective, Mary Jane had
to renounce her share within 9 months of “the date on which
the transfer creating the interest in [Mary Jane was] made.”3
Mary Jane and Jerome did not receive the check until over a
year after Blanche had died and the will had been admitted to
probate, so Mary Jane’s renunciation was ineffective.
Nevertheless, on November 20, 2009, Palik told Jerome in
an e-mail that he would be sending the new check and pro-
vided a tracking number. Palik told Jerome he would contact
him on November 23 to ensure that the check had arrived. On
November 24, Jerome sent an e-mail to Palik informing him
that the check had not arrived and that the carrier could not
verify the tracking number that Palik had provided.
The next day, Palik sent Jerome another e-mail. He said
that he had just talked to that the carrier and the carrier would
call him back regarding the check. Palik told Jerome he would
call him back on November 28, 2009. Palik apparently did
not call.
3 See Neb. Rev. Stat. § 30-2352(b) (Reissue 2008).

356 	284 NEBRASKA REPORTS
On December 3, 2009, Palik e-mailed Jerome, told him that
he could pick up the check on the following day, and again
provided Jerome with a tracking number. The check did not
arrive. On January 13, 2010, Palik again e-mailed Jerome and
told him that the carrier would pick up the check on January 14
and that he would have it on January 15. Palik again provided
a tracking number.
On January 15, 2010, Palik e-mailed Jerome and told him
that the carrier had failed to pick up the package but that he
was taking it to the carrier himself. He stated that Jerome
would receive the check on January 18. On January 19,
Jerome e-mailed Palik and told him that he had not received
the check and that the tracking number Palik had provided
was invalid.
This routine continued. From February 15 through April 20,
2010, Palik repeatedly e-mailed Jerome with statements prom-
ising delivery of the check. On April 30, Palik again provided
Jerome with yet another routing number and a delivery date
of May 4. On May 25 and again on June 16, Jerome e-mailed
Palik to tell him that the check had not arrived and to ask
for details. On June 18, Palik responded that he had been out
of the office for personal reasons and would call Jerome on
June 21. On June 21, Palik e-mailed Jerome. He stated that
he would call the next day with a new tracking number. On
June 22, Palik e-mailed Jerome to tell him the check would
be picked up on June 24 and delivered on June 25. The check
never arrived.
Obviously, all of Palik’s claims that “the check is in the
mail” were lies. The tracking numbers for the nonexistent
packages were fabrications by Palik. In fact, Palik had never
told Olson that Mary Jane wished to renounce her inheri-
tance and never told Olson of the need to issue a new check
to Jerome.
Because the $60,000 that was due to Mary Jane, and later
to Jerome, was never given to them, it remained in the estate’s
bank account. When Olson distributed this account to the
residuary beneficiaries of the will, this $60,000 went to them,
instead of Jerome.

STATE EX REL. COUNSEL FOR DIS. v. PALIK 	357
Cite as 284 Neb. 353
On November 15, 2010, Jerome filed a grievance with the
Relator regarding Palik’s failure to deliver the check. Palik
responded by telling the Relator that the $60,000 had appar-
ently been distributed to the residuary beneficiaries but that he
would meet with Olson. While he did twice meet with Olson,
he did not tell Olson about Mary Jane’s renunciation, the need
to issue a check to Jerome, or Jerome’s grievance.
The Relator eventually contacted Olson. Olson told the
Relator that Palik had not told him about Mary Jane’s renuncia-
tion or about Jerome’s grievance. Olson said that because Palik
had not told him that Mary Jane had not cashed the check, he
had distributed her $60,000 to the residuary beneficiaries over
a year before. In January 2011, Olson sent $60,000 of his own
money to Jerome to cover Jerome’s share.
On January 10, 2011, the Relator sent Palik a letter request-
ing an explanation regarding Jerome’s grievance and to pro-
vide documents regarding Blanche’s estate. Palik did not
respond. On February 16, the Relator sent Palik the for-
mal charges. As we have mentioned, Palik admitted them in
their entirety.
At the hearing before the referee, Palik was remorseful.
Palik, however, neither offered excuses nor explained his
behavior. He provided no evidence of mitigating factors to
the referee.
An aggravating factor, however, was established. This is
not Palik’s first run-in with disciplinary authorities. In 2004,
Palik received a private reprimand. The reprimand stemmed
from a guilty plea to a misdemeanor assault charge that arose
from a domestic incident between Palik, his then-wife, and
his son.
After a hearing, the referee issued his report. The referee
recommended that we suspend Palik for 1 year and then, upon
reinstatement, that he be subject to a 1-year term of probation
that will include monitoring by a licensed attorney.
At oral argument, we learned that Palik, who was still the
attorney of record for Olson and the estate, had not formally
closed the estate or reimbursed Olson for the $60,000 that
Olson paid to Jerome out of his own pocket. Following oral

358 	284 NEBRASKA REPORTS
argument, however, we granted Palik leave to supplement the
record with such evidence, along with any other evidence dem-
onstrating mitigating circumstances. Palik submitted evidence
that he had closed the estate, that he had entered into agree-
ments with Olson and Jerome to pay them restitution, and that
there were personal circumstances which helped explain (and
mitigated) his deceitful and unprofessional behavior.
ASSIGNMENT OF ERROR
The Relator asks that we reject the referee’s recommendation
of a 1-year suspension and instead impose a 2-year suspension.
STANDARD OF REVIEW
[1] A proceeding to discipline an attorney is a trial de novo
on the record.4
ANALYSIS
[2] The basic issues in a disciplinary proceeding against
an attorney are whether we should impose discipline and, if
so, the appropriate discipline under the circumstances.5 Palik
has admitted to violating the rules and admits that some dis-
cipline should be imposed. So we consider only what sanction
to impose.
[3] Under Neb. Ct. R. § 3-304, we may impose one or more
of the following disciplines: (1) disbarment; (2) suspension; (3)
probation in lieu of or subsequent to suspension, on such terms
as we may designate; or (4) censure and reprimand.6
[4] To determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, we
consider the following factors: (1) the nature of the offense, (2)
the need for deterring others, (3) the maintenance of the repu-
tation 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
4 State ex rel. Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174
(2012).
5 Id.
6 See id.
7 Id.

STATE EX REL. COUNSEL FOR DIS. v. PALIK 	359
Cite as 284 Neb. 353
[5,6] In imposing attorney discipline, we evaluate each case
in light of its particular facts and circumstances.8 And we con-
sider the attorney’s acts both underlying the events of the case
and throughout the proceeding.9
[7,8] When determining appropriate discipline, we consider
aggravating and mitigating factors.10 Cumulative acts of attor-
ney misconduct are distinguishable from isolated incidents and
justify more serious sanctions.11 At this point, we note Palik’s
prior reprimand is an aggravating factor.
Palik’s procrastination and foot-dragging occurred before
he had sent the check to Mary Jane, and it continued in his
dealings with Jerome. A comment to our rules of professional
conduct aptly sums up the problem:
Perhaps no professional shortcoming is more widely
resented than procrastination. A client’s interests often
can be adversely affected by the passage of time or the
change of conditions . . . . Even when the client’s inter-
ests are not affected in substance, however, unreasonable
delay can cause a client needless anxiety and undermine
confidence in the lawyer’s trustworthiness.12
Here, Palik’s procrastination prevented Mary Jane from
renouncing her share. Even more disturbing though is the
months of deceit that he engaged in with Jerome. Time after
time, he lied to Jerome, going so far as to fabricate tracking
numbers for fictitious packages. Palik’s lies were deliberate
attempts to mislead Jerome. By the time Palik’s smokescreen
had cleared, it was too late; there was no money left in the
estate to give to Jerome. So Olson paid Jerome $60,000 out of
his own pocket.
There is no doubt that Palik utterly failed as an attorney, and
such failure is worthy of punishment. But while Palik’s actions
were egregious violations of his duties as an attorney, Palik has
8 Id.
9 See id.
10 Id.
11 See id.
12 § 3-501.3, comment 3.

360 	284 NEBRASKA REPORTS
since done his best to make amends, although belatedly. Palik
has also explained that he was beset with personal difficulty
during the relevant time, which, while not an excuse, does
offer some explanation for his actions.
Palik has entered into an agreement with Olson to repay with
interest the money that Olson paid out of his own pocket to
cover Jerome’s share. Palik has also entered into an agreement
to pay interest to Jerome for the delay in receiving Jerome’s
share of the estate. And Palik has expressed, we believe, genu-
ine remorse for his conduct and has taken responsibility for his
actions. These are all mitigating factors in Palik’s favor.13 We
note that Palik has informally closed the estate and removed
himself as the attorney of record.
Furthermore, Palik has offered as mitigating factors a num-
ber of personal problems which occurred when his misconduct
took place. Palik suffered from health problems, as did his
wife and mother. Palik’s stepfather served Palik’s mother with
divorce papers, for whom Palik had previously drawn up a
prenuptial agreement. This caused some conflict in the family.
Palik fought with his ex-wife about planning and paying for
their children’s weddings, and he had strained relationships
with his sons to the point where they now rarely speak. We
consider these personal problems to be mitigating factors in
Palik’s favor.14
Balancing Palik’s unprofessional behavior with his miti-
gating circumstances leads us to conclude that the referee’s
recommended punishment is appropriate. We therefore impose
the following disciplines: (1) Palik is suspended for 1 year
from the practice of law; (2) before Palik may be readmitted,
he must present this court with proof that he has fulfilled his
agreements with Olson and Jerome; and (3) upon readmission,
13 See, e.g., Switzer, supra note 2; State ex rel. Counsel for Dis. v. Wintroub,
267 Neb. 872, 678 N.W.2d 103 (2004); State ex rel. Counsel for Dis.
v. Mills, 267 Neb. 57, 671 N.W.2d 765 (2003); State ex rel. NSBA v.
Frederiksen, 262 Neb. 562, 635 N.W.2d 427 (2001).
14 See, e.g., State ex rel. NSBA v. Rothery, 260 Neb. 762, 619 N.W.2d 590
(2000); State ex rel. NSBA v. Simmons, 259 Neb. 120, 608 N.W.2d 174
(2000).

JONES v. JONES 	361
Cite as 284 Neb. 361
Palik will be subject to a 1-year probationary term during
which he will be supervised by an attorney to be selected by
the Relator. In addition, Palik is to comply with Neb. Ct. R.
§ 3-316 and is subject to contempt of this court if he does not.
Further, Palik is to pay the costs of this action 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.
JuDgmeNt of SuSpeNSioN.
JaviS arvell JoNeS, appellaNt, v.
valeNe m. JoNeS, appellee.
821 N.W.2d 211
Filed September 21, 2012. 	No. S-11-668.
1. Actions: Dismissal and Nonsuit. Dismissal of a civil action for lack of prosecu-
tion is addressed to the discretion of a trial court, whose ruling, in the absence of
an abuse of discretion, will be upheld on appeal.
2. Courts: Dismissal and Nonsuit. A district court has discretionary power to dis-
miss a case for want of prosecution, and such dismissal is also within the court’s
inherent power.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
4. Courts: Dismissal and Nonsuit. The power to dismiss for want of prosecution
is necessary in order to prevent undue delays in the disposition of pending cases
and to avoid congestion in the trial courts.
5. Public Officers and Employees: Prisoners: Courts. Prison officials must
ensure that inmates have adequate, effective, and meaningful access to the courts.
6. Constitutional Law: Trial: Prisoners. Prison inmates have no constitutional
right to be released from prison so that they may be present in person at the trial
of a civil court action.
Petition for further review from the Court of Appeals,
iNboDy, Chief Judge, and irWiN and pirtle, Judges, on appeal
thereto from the District Court for Douglas County, W. mark
aShforD, Judge. Judgment of Court of Appeals reversed, and
cause remanded with direction.
Javis Arvell Jones, pro se.