State ex re. Counsel for Dis. v. Island
296 Neb. 624
| Neb. | 2017Background
- Respondent Bell Island, admitted in 1994, represented a woman (the client) linked to a 2008 child murder investigation; charges against the client were later dismissed as time-barred, while a co-defendant (Chauncey) was indicted and tried.
- At Chauncey’s 2015 trial, the client twice invoked the Fifth Amendment and was ordered to testify under grant of use/immunity; she refused and was held in contempt after conferring with respondent.
- While the trial was underway, respondent authorized a press release stating the prosecution’s version of events “forces [the client] to either lie or face perjury charges,” accusing the prosecutor (Zimmerman) indirectly of pursuing a false narrative.
- Zimmerman filed a complaint; the Counsel for Discipline charged respondent with violating several Nebraska Rules of Professional Conduct and an attorney oath; respondent denied the charges and a referee conducted a hearing.
- The referee found respondent violated Neb. Ct. R. of Prof. Cond. §§ 3-503.6 (trial publicity), 3-504.1(a) (truthfulness in statements to others), and 3-508.4(a) and (d) (misconduct), recommended a public reprimand, and declined to find violations of the attorney oath or § 3-504.4.
- Neither party filed exceptions; the Nebraska Supreme Court treated the referee’s findings as final, granted the Counsel for Discipline’s motion for judgment on the pleadings, and imposed a public reprimand with costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent made extra-judicial/public statements likely to materially prejudice the proceeding (trial publicity) | Counsel: Press release publicly attacked prosecutor and risked prejudicing the adjudication | Island: (denied in answer; no exceptions filed contesting findings) | Court: Violation of § 3-503.6 proved by clear and convincing evidence |
| Whether respondent knowingly made false statements of material fact or law to third persons (truthfulness) | Counsel: Press release contained knowingly false/misleading assertions about prosecution’s conduct | Island: (denied; no exceptions) | Court: Violation of § 3-504.1(a) proved by clear and convincing evidence |
| Whether respondent engaged in conduct prejudicial to administration of justice (misconduct) | Counsel: Public, offensive release damaged the reputation of the bar and undermined the proceeding | Island: (denied; no exceptions) | Court: Violation of § 3-508.4(a) and (d) proved by clear and convincing evidence |
| Appropriate discipline for violations | Counsel: Public reprimand warranted given offense and need for deterrence | Island: Mitigating factors (regret, no danger to public, limited prior discipline) | Court: Public reprimand imposed considering aggravating and mitigating facts |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995 (2017) (referee findings may be final when no exceptions filed)
- State ex rel. Counsel for Dis. v. Thebarge, 289 Neb. 356 (2014) (disciplinary proceedings are de novo on the record)
- State ex rel. Counsel for Dis. v. Sundvold, 287 Neb. 818 (2014) (disciplinary charges must be proved by clear and convincing evidence)
- State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30 (2016) (standards for proving attorney misconduct and considering discipline)