State ex re. Counsel for Dis. v. Island
296 Neb. 624
| Neb. | 2017Background
- Respondent Bell Island, an attorney admitted in 1994, issued a press release on behalf of his client during a 2015 murder trial in Scotts Bluff County.
- The client, mother of the murder victim, repeatedly refused to testify after invoking the Fifth Amendment and being held in contempt; prosecutors had sought her testimony and offered immunity.
- The press release, drafted at respondent’s direction, criticized the prosecutor (James Zimmerman) and stated the prosecution’s version of events would “force [the client] to either lie or face perjury charges.”
- The Counsel for Discipline filed one-count formal charges alleging violations of Nebraska Rules of Professional Conduct, including trial publicity, truthfulness in statements to others, and misconduct. A referee found violations of §§ 3-503.6, 3-504.1(a), and 3-508.4(a) and (d), but not of § 3-504.4 or the attorney oath.
- Neither party excepted to the referee’s report; the Nebraska Supreme Court treated the referee’s factual findings as final, granted judgment on the pleadings, and imposed a public reprimand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent made extrajudicial statements likely to materially prejudice the proceeding (Rule 3-503.6) | Relator: press release publicly questioned prosecutor’s integrity and risked prejudice to the ongoing trial | Island: implied mitigation—did not intend to impugn integrity; regretted wording | Court: Violation proven; press release likely to materially prejudice the proceeding |
| Whether respondent knowingly made false statements of material fact or law to a third person (Rule 3-504.1(a)) | Relator: statements about prosecution forcing perjury were false/misleading and made to media | Island: contested facts not excepted to referee; expressed regret and lack of intent to mislead | Court: Violation proven; respondent knowingly made false/misleading statements to a third person |
| Whether respondent engaged in conduct prejudicial to the administration of justice (Rule 3-508.4(a),(d)) | Relator: public attack on prosecutor’s integrity undermined public confidence and the bar’s reputation | Island: asserted no intent to impugn and no danger to public; prior conduct context and mitigation | Court: Violation proven; conduct was prejudicial and harmed reputation of the bar |
| Appropriate discipline for misconduct | Relator: discipline required to deter and protect reputation of bar (seeking sanction consistent with prior reprimand) | Island: mitigation—regret, no prior serious discipline beyond earlier public reprimand, fitness to continue practice | Court: Public reprimand imposed considering aggravating and mitigating factors |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995 (treating referee findings as final when unchallenged)
- State ex rel. Counsel for Dis. v. Thebarge, 289 Neb. 356 (disciplinary proceedings are de novo on the record)
- State ex rel. Counsel for Dis. v. Sundvold, 287 Neb. 818 (disciplinary charges require clear and convincing proof)
- State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30 (disciplinary standards and proof requirements)
- State v. Chauncey, 295 Neb. 453 (criminal conviction referenced in underlying facts)