State ex rel. Counsel for Dis. v. Kleinsmith

312 	285 NEBRASKA REPORTS
State of NebraSka ex rel. C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator,
v. philip m. kleiNSmith, reSpoNDeNt.
826 N.W.2d 860
Filed February 22, 2013. 	No. S-12-1164.
Original action. Judgment of public reprimand.
heaviCaN, C.J., Wright, C oNNolly, StephaN, mCC ormaCk,
miller-lermaN, and CaSSel JJ.
per C uriam.
INTRODUCTION
The Counsel for Discipline of the Nebraska Supreme Court,
relator, has filed a motion for reciprocal discipline against
Philip M. Kleinsmith, respondent. We grant the motion for
reciprocal discipline and impose the same discipline as the
Arizona Supreme Court, which is a public reprimand and 1
year’s probation effective March 20, 2012.
FACTS
Respondent was admitted to the practice of law in the
State of Nebraska on August 14, 1989. Respondent was also
admitted to the practice of law in the State of Arizona and
numerous other jurisdictions. On March 20, 2012, the Arizona
Supreme Court issued an order which publicly reprimanded
respondent and placed him on probation for a period of 1
year. The order was based on an “Agreement for Discipline
by Consent,” which generally stipulates to respondent’s having
filed improper arbitration certificates in numerous cases. This
discipline was not self-reported by respondent as required by
Neb. Ct. R. § 3-321. The Counsel for Discipline learned of
the discipline imposed by the Arizona Supreme Court when it
received a copy of an order of reciprocal discipline from the
State of Utah.
On December 12, 2012, the Counsel for Discipline filed a
motion for reciprocal discipline pursuant to § 3-321 of the dis-
ciplinary rules. On December 19, we entered an order to show
cause as to why we should not impose reciprocal discipline.
On December 31, respondent responded to the order to show
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STATE EX REL. COUNSEL FOR DIS. v. KLEINSMITH 	313
Cite as 285 Neb. 312
cause in which he consents to an order imposing identical
discipline, or greater or lesser discipline, as we deem proper.
The Counsel for Discipline did not respond to the order to
show cause.
ANALYSIS
The basic issues in a disciplinary proceeding 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. Underhill, ante p. 85, 825
N.W.2d 423 (2013). In a reciprocal discipline proceeding, a
judicial determination of attorney misconduct in one jurisdic-
tion is generally conclusive proof of guilt and is not subject to
relitigation in the second jurisdiction. Id. Based on the record
before us, we find that respondent is guilty of misconduct.
Neb. Ct. R. § 3-304 of the disciplinary rules 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
(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.
Section 3-321 of the disciplinary rules provides in part:
(A) Upon being disciplined in another jurisdiction, a
member shall promptly inform the Counsel for Discipline
of the discipline imposed. Upon receipt by the Court of
appropriate notice that a member has been disciplined in
another jurisdiction, the Court may enter an order impos-
ing the identical discipline, or greater or lesser discipline
as the Court deems appropriate, or, in its discretion, sus-
pend the member pending the imposition of final disci-
pline in such other jurisdiction.

314 	285 NEBRASKA REPORTS
In imposing attorney discipline, we evaluate each case in
light of its particular facts and circumstances. State ex rel.
Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174
(2012). In his response to our order to show cause, respondent
has consented to the entry of a judgment imposing identical
discipline, or greater or lesser discipline, as we deem appro-
priate. The order of the Arizona Supreme Court publicly
reprimanded the respondent and placed him on probation
for a period of 1 year. We grant the motion for reciprocal
discipline, enter a judgment of public reprimand, and place
respondent on probation for a period of 1 year, effective
March 20, 2012.
CONCLUSION
The motion for reciprocal discipline is granted. It is the
judgment of this court that respondent should be and is pub-
licly reprimanded and placed on probation for a period of 1
year, effective March 20, 2012. Respondent is directed to pay
costs and expenses in accordance with Neb. Ct. R. §§ 3-310(P)
and 3-323(B) of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
JuDgmeNt of publiC reprimaND.