State ex rel Counsel for Dis. v. Peppard
291 Neb. 948
| Neb. | 2015Background
- Ralph E. Peppard, an attorney admitted in Nebraska in 1980, was charged by the Counsel for Discipline for simultaneously representing adverse parties in guardianship and probate matters concerning Johanna Morrell.
- In October 2010 Peppard prepared and filed a petition seeking appointment of Lee Lorenz as Morrell’s guardian-conservator and stated he represented Morrell in that proceeding.
- The Department of Health and Human Services separately sought appointment of a guardian-conservator and investigated Lorenz for alleged financial exploitation; Peppard also stated he represented Lorenz in meetings with the Department and county attorney about those allegations.
- In March 2011 Morrell executed a new will drafted by Peppard leaving her estate to Lorenz; later probate proceedings found Morrell lacked capacity and was unduly influenced, invalidating the 2011 will and admitting the 2010 will.
- The Court of Appeals noted Peppard’s dual representation and found it deeply troubling that he drafted a will benefitting the person under investigation and subject to a guardian-conservator appointment.
- Peppard filed a conditional admission under Neb. Ct. R. § 3-313 admitting violation of Neb. Ct. R. of Prof. Cond. § 3-501.7 (conflicts of interest); the court accepted it and imposed a public reprimand and assessed costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peppard had a conflict of interest by representing both Morrell and Lorenz in related matters | Peppard represented both clients in overlapping proceedings and drafted a will favoring Lorenz while Lorenz was under investigation, creating a disqualifying conflict | Peppard acknowledged representation but conditionally admitted only violation of § 3-501.7 and waived further proceedings | Court found Peppard violated § 3-501.7 and his oath; accepted conditional admission and imposed public reprimand |
| Whether Peppard’s drafting of the 2011 will constituted misconduct given the Department’s investigation and a guardian-conservator appointment | Drafting the will for the person under investigation and benefitting that person shows improper influence and lack of independent counsel for Morrell | Peppard did not contest facts conditionally admitted; no further defense | Court and Court of Appeals concluded the 2011 will was invalid due to lack of independent advice and undue influence; disciplinary violation supported |
| Appropriateness of discipline (public reprimand) under disciplinary rules | Counsel for Discipline: public reprimand consistent with similar misconduct precedents | Peppard agreed to the proposed sanction via conditional admission | Court approved the conditional admission and imposed public reprimand and costs |
| Whether conditional admission bars further proceedings or use of admission | Conditional admission waives further proceedings as to admitted matters | Peppard knowingly waived proceedings; sought court approval | Court accepted the waiver; conditional admission approved per Neb. Ct. R. § 3-313 |
Key Cases Cited
- In re Estate of Morrell, 22 Neb. App. 384, 853 N.W.2d 525 (2014) (Court of Appeals decision finding dual representation and undue influence; criticized drafting of will favoring person under investigation)