State ex rel. Counsel for Dis. v. Thebarge, 854 N.W.2d 914

Respondent Lenny W. Thebarge, Jr., an Omaha attorney admitted in 2011, faced formal disciplinary charges for misappropriating/commingling client funds, failing to communicate and diligently represent clients, refusing to cooperate with Counsel for Discipline, and fabricating evidence.
Multiple clients (Nelson, Cabriales, Miller, Rodwell) paid advance fees or checks that were deposited into respondent’s trust account and were immediately withdrawn or not properly accounted for, leaving trust account shortages.
Respondent failed to communicate with clients, allowed at least one client matter to be dismissed for lack of action, and retained client files without properly withdrawing.
During the disciplinary investigation, respondent refused to produce requested trust-account records, evaded service, and submitted letters later shown or assumed to be fabricated; he also refused a forensic examination of his computer.
Respondent did not answer the formal charges; judgment on the pleadings was entered, facts were deemed established, appointed counsel resigned for lack of communication, and respondent waived oral argument.
The Nebraska Supreme Court concluded there were no mitigating factors, found cumulative and aggravated misconduct (including dishonesty and obstruction of the disciplinary process), and ordered immediate disbarment and assessment of costs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether respondent misused client funds and violated trust-account rules	Counsel for Discipline: respondent misappropriated/commingled funds, withdrew client advances improperly, failed to account	Respondent: (did not answer; asserted authorization in one instance)	Held: Violations established; misappropriation/commingling found
Whether respondent neglected client matters and failed to communicate	Counsel: respondent neglected cases, allowed dismissal, failed to notify clients or courts	Respondent: (no responsive defense presented)	Held: Violations of diligence and communication rules proven
Whether respondent obstructed the disciplinary investigation (fabrication, refusal to produce records, evasion)	Counsel: respondent fabricated letters, refused audits, evaded service, obstructed investigation	Respondent: (no responsive defense; declined computer exam)	Held: Fabrication and failure to cooperate established; aggravated misconduct
Appropriate sanction given cumulative misconduct	Counsel: disbarment appropriate to protect public and deter, given pattern and dishonesty	Respondent: (no mitigation offered; failed to respond)	Held: Disbarment ordered; costs assessed

State ex rel. Counsel for Dis. v. Chapin, 270 Neb. 56, 699 N.W.2d 359 (2005) (failure to answer formal charges can lead to judgment on pleadings)
State ex rel. Counsel for Dis. v. Bouda, 282 Neb. 902, 806 N.W.2d 879 (2011) (disciplinary proceedings reviewed de novo on record)
State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 702 (2009) (discipline aims to protect public and bar reputation)
State ex rel. Counsel for Dis. v. Ellis, 283 Neb. 329, 808 N.W.2d 634 (2012) (fabrication to deceive Counsel for Discipline warrants severe sanction; disbarment imposed)
State ex rel. Counsel for Dis. v. Crawford, 285 Neb. 321, 827 N.W.2d 214 (2013) (misappropriation/commingling presumptively merits disbarment absent extraordinary mitigation)
State ex rel. Counsel for Dis. v. Wintroub, 267 Neb. 872, 678 N.W.2d 103 (2004) (mitigating factors must be extraordinary to avoid disbarment for misappropriation)
State ex rel. Counsel for Dis. v. Coe, 271 Neb. 319, 710 N.W.2d 863 (2006) (neglect and failure to cooperate can support disbarment)
State ex rel. NSBA v. Simmons, 259 Neb. 120, 608 N.W.2d 174 (2000) (failure to respond to disciplinary inquiries prejudicial to administration of justice)