State ex rel. Counsel for Dis. v. Gast
296 Neb. 687
| Neb. | 2017Background
- William E. Gast represented defendants in long-running litigation (State of Florida v. Countrywide Truck Ins. Agency) and became convinced Judge Peter C. Bataillon was biased against his clients.
- After a 2014 bench submission and proposed findings, Gast sent three private communications to Judge Bataillon and opposing counsel: a confidential memorandum (Exhibit A), a letter alleging a "cover-up" (Exhibit B), and a later letter urging the judge to "quietly back out" to protect his interests (Exhibit C).
- Gast filed motions to recuse based on alleged undisclosed social ties between the judge and opposing counsel; the motions were denied and the district court later sanctioned Gast $15,000 as frivolous.
- The Counsel for Discipline charged Gast with violations of Nebraska Rules of Professional Conduct § 3-503.5(a)(1) (improperly seeking to influence a judge), § 3-508.2(a) (false/reckless statements about a judge), § 3-508.4(a) and (d) (professional misconduct / prejudicial conduct), and violation of his oath under Neb. Rev. Stat. § 7-104.
- A referee found some violations and recommended a 30-day suspension plus probation; the Nebraska Supreme Court reviewed de novo, found multiple violations by clear and convincing evidence, and imposed a 1-year suspension followed by 2 years’ probation upon reinstatement.
Issues
| Issue | Plaintiff's Argument (Counsel for Discipline) | Defendant's Argument (Gast) | Held |
|---|---|---|---|
| Whether Gast violated § 3-503.5(a)(1) by attempting to influence the judge by "means prohibited by law" (exhibits A, B, C) | Gast attempted to influence the judge through extra-judicial, legally improper means (urging decisions based on reputation, health, faith, judge's interests) and thus violated the rule | Gast admitted some violation as to A/B/C but later equivocated; argued narrow reading of "means prohibited by law" | Court held § 3-503.5(a)(1) covers noncriminal violations (judicial code / professional rules); Gast violated the rule as to exhibits A and C (and admitted A/C), and waiver bars contesting those admissions |
| Whether Gast violated § 3-508.2(a) by making reckless false statements about the judge (Exhibit B: "cover-up") | The "cover-up" accusation was false and made with reckless disregard for truth because Gast had only unsubstantiated hearsay (wife’s conversation) about a decades-old acquaintance | Gast contended the statement was opinion/characterization and did not show reckless disregard | Court held Gast’s "cover-up" accusation lacked an objectively reasonable factual basis and was made with reckless disregard, violating § 3-508.2(a) |
| Whether Gast violated § 3-508.4(a),(d) and his oath under § 7-104 | Communications amounted to professional misconduct and conduct prejudicial to administration of justice; violated his oath | Gast admitted violations in his answer for these provisions | Court agreed Gast waived objections and violated these provisions and his oath |
| Appropriate sanction | Counsel for Discipline requested greater sanction than referee’s recommendation (argued seriousness, lack of remorse, cumulative misconduct) | Referee recommended 30-day suspension + 2 years probation; Gast offered no meaningful mitigation and showed little remorse | Court imposed 1-year suspension (effective Mar 3, 2017), then 2 years’ probation upon reinstatement; costs awarded |
Key Cases Cited
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400 (summarized underlying litigation history)
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204 (discussed scope of § 3-503.5(a)(1); court disapproved narrow reading to criminal acts only)
- State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566 (disciplinary standard; original proceedings review)
- State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995 (discipline proof standard cited)
- Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990) (authority for broad reading of "means prohibited by law" to include judicial code violations)