State ex re. Counsel for Dis. v. Island
296 Neb. 624
Neb.2017Background
- Respondent Bell Island, a Nebraska lawyer admitted in 1994, represented a woman (the client) in matters arising from her 2‑year‑old daughter’s 2008 murder. No charges were initially filed against the client; Dustin Chauncey was later indicted and tried for the child’s death.
- At Chauncey’s 2015 trial, the prosecution sought the client’s testimony; the client invoked the Fifth Amendment and was ordered to testify. After consulting with Island she refused and was held in contempt.
- During the trial, Island caused a press release to be issued on the client’s behalf, stating the prosecution’s version of events “forces [the client] to either lie or face perjury,” which directly questioned the prosecutor’s integrity.
- The Scotts Bluff County special prosecutor, James Zimmerman, filed a complaint with Counsel for Discipline; formal charges alleging violations of Nebraska Rules of Professional Conduct were filed July 22, 2016.
- A referee found Island 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), and recommended a public reprimand. Neither party filed exceptions; the Supreme Court granted judgment on the pleadings and imposed a public reprimand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Island’s press release violated rules on trial publicity and truthfulness | Press release was an extrajudicial public statement likely to prejudice the proceeding and contained knowingly false/misleading assertions about the prosecutor | Island regretted wording and did not intend to impugn prosecutor; argued statements were made on client’s behalf and not disciplinary violations | Court held Island violated §§ 3‑503.6 and 3‑504.1(a) (extrajudicial/public statement and false statements to others) |
| Whether Island’s conduct constituted misconduct prejudicial to administration of justice | Counsel argued conduct was prejudicial and undermined public confidence in the bar | Island disputed severity and intent; emphasized lack of public danger and remorse | Court held Island violated § 3‑508.4(a) and (d) (misconduct prejudicial to administration of justice) |
| Whether Island violated oath of office or § 3‑504.4 (respect for rights of third persons) | Relator initially alleged oath and § 3‑504.4 violations as well | Referee found insufficient basis for those specific violations; Island did not violate oath or § 3‑504.4 | Court accepted referee: no violation of oath or § 3‑504.4 |
| Appropriate discipline for the misconduct | Relator sought discipline to deter similar public statements and protect reputation of bar | Island cited mitigation (regret, no danger to public, limited prior discipline) | Considering aggravating and mitigating factors, court imposed a public reprimand |
Key Cases Cited
- State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (Neb. 2017) (underlying criminal conviction in the related prosecution)
- State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995 (Neb. 2017) (referee findings without exceptions may be treated as final and conclusive)
- State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d 530 (Neb. 2016) (disciplinary charges require clear and convincing proof)
- State ex rel. Counsel for Dis. v. Thebarge, 289 Neb. 356, 854 N.W.2d 914 (Neb. 2014) (disciplinary proceedings are trials de novo on the record)
- State ex rel. Counsel for Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 771 (Neb. 2014) (standard that disciplinary violations must be proved by clear and convincing evidence)