State ex rel. Counsel for Dis. v. Smith, 287 Neb. 755

Smith was disbarred in 2008 for failing to respond to Counsel for Discipline and improper trust account practices; he later faced a grievance arising from prior representation of Kawa.
Smith filed a petition for reinstatement on March 11, 2013; a referee recommended denial, and Counsel for Discipline did not object to reinstatement.
Evidence at the reinstatement hearing included Smith’s testimony, six letters of recommendation, a psychologist’s letter, a CLE certificate on trust accounts, and related court documents.
The court applied heightened scrutiny for reinstatement, noting the heavier burden on a disbarred attorney to prove current fitness by clear and convincing evidence, with considerations of present character outweighing sympathy.
The court granted reinstatement subject to two years of probation and monitoring, including an obligation to hire an accountant to audit Smith’s trust account every six months and to submit audit results to Counsel for Discipline.
Post-disbarment, Smith worked with his wife’s business using legal skills, completed trust account coursework, and received multiple letters supporting reinstatement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether reinstatement should be granted given past egregious misconduct	Smith’s rehabilitation and evidence of present fitness support reinstatement	But the heavy burden of present fitness must be met due to egregious misconduct	Reinstatement granted with conditions
What standards govern reinstatement in Nebraska attorney discipline	The court must protect the public and require clear and convincing evidence	The record supports weighing credibility and past conduct	Clear and convincing standard governs reinstatement; burden lies on applicant to show fitness
What conditions accompany reinstatement	Conditions will ensure public protection and integrity of the bar	Discipline need not be overly onerous given rehabilitation	Reinstatement granted with two years probation, monitoring, and biannual trust-account audits at applicant’s expense

State ex rel. Counsel for Dis. v. Scott, 275 Neb. 194 (2008) (reinstatement denied after egregious misconduct; weighs past conduct against present fitness)
State ex rel. Counsel for Dis. v. Mellor, 271 Neb. 482 (2006) (denial due to lack of present fitness and concern over misconduct)
State ex rel. NSBA v. Kinney, 274 Neb. 412 (2007) (considerations after disciplinary action; evidence of rehabilitation and restitution weighed)
State ex rel. Counsel for Dis. v. Smith, 275 Neb. 230 (2008) (disbarment; background for reinstatement proceedings)