State ex rel. Counsel for Dis. v. Gast
296 Neb. 687
| Neb. | 2017Background
- William E. Gast, long-time defense counsel in State of Florida v. Countrywide Truck Ins. Agency (litigated since 1998), became convinced Judge Peter C. Bataillon was biased and filed motions to recuse after unfavorable rulings.
- After a 2014 bench submission, Gast sent three extra‑judicial communications to Judge Bataillon and opposing counsel (exhibits A, B, C): a confidential memorandum and two letters that urged recusal and suggested improper motives and a "cover‑up."
- Gast admitted violating the rule prohibiting attempts to influence a judge by improper means as to some communications, but disputed other charged violations; the Counsel for Discipline charged violations of Neb. Ct. R. of Prof. Cond. §§ 3‑503.5(a)(1), 3‑508.2(a), and 3‑508.4(a) & (d), and breach of the attorney oath (Neb. Rev. Stat. § 7‑104).
- A referee found violations as to some exhibits and recommended a 30‑day suspension plus probation; the Counsel for Discipline filed exceptions to the referee’s recommendations; Gast did not file exceptions and showed little remorse at hearing.
- The Nebraska Supreme Court reviewed de novo, found clear and convincing evidence that Gast: (1) sought to influence the judge by improper means (sending private communications urging decision on irrelevant grounds), (2) made false/reckless accusations (the “cover‑up” allegation) with reckless disregard for truth, and (3) violated related professional‑conduct rules and his oath.
- The court suspended Gast for 1 year (effective March 3, 2017), conditioned reinstatement on 2 years’ probation, and directed payment of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gast violated § 3‑503.5(a)(1) (seeking to influence a judge by means prohibited by law) by sending extra‑judicial, private communications urging recusal and decision on non‑legal grounds | Counsel for Discipline: Gast urged the judge to decide based on reputation, personal/religious considerations, client health, and the judge’s own interests—i.e., means prohibited by law and judicial‑code duties | Gast admitted some violation but sought to limit culpability for one letter (exhibit C), claiming content was factual/opinion and within courtroom record | Court: Violated § 3‑503.5(a)(1) as communications attempted to induce decision on legally irrelevant grounds and via confidential out‑of‑court means; admissions in pleadings waived contest for certain exhibits |
| Whether "by means prohibited by law" in § 3‑503.5(a)(1) is limited to criminal acts or includes violations of judicial and professional codes | Counsel: It includes means prohibited by the Code of Judicial Conduct and Rules of Professional Conduct; private pressure that invites a judge to breach judicial canons is prohibited | Implicitly: narrower reading (argued via reliance on Koenig reasoning) that focused on criminality | Court: Broad reading adopted; disapproved Koenig to the extent it suggested constriction to criminal acts; violations of judicial ethics and extra‑judicial influence fall within the rule |
| Whether Gast violated § 3‑508.2(a) by making statements about the judge’s integrity (the "cover‑up" allegation) with reckless disregard for truth | Counsel: The "cover‑up" allegation was false and Gast had no objectively reasonable basis for it (reliance on wife's conversation with opposing counsel’s ex‑spouse insufficient) | Gast: Believed the allegation and characterized it as opinion or inference from facts; not knowingly false | Court: Gast acted with reckless disregard; no reasonable lawyer would allege a cover‑up without substantial corroboration; violation proved by clear and convincing evidence |
| Appropriate sanction for cumulative misconduct, lack of remorse, and prior record | Counsel: Suspension greater than referee’s 30 days is warranted given cumulative acts, private pressure on judge, false allegations, and lack of remorse | Gast: No brief/exception arguing for lesser discipline; emphasized long career and lack of prior discipline | Court: Imposed 1‑year suspension and 2 years’ probation on reinstatement, citing aggravating factors (lack of remorse, repeated misconduct) and limited mitigating factors (no prior discipline, no client harm) |
Key Cases Cited
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883 N.W.2d 69 (2016) (underlying litigation and appellate history)
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204, 769 N.W.2d 378 (2009) (prior discipline decision discussing attempts to influence officials; court disapproved to extent read to limit § 3‑503.5(a)(1) to criminal acts)
- State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566, 869 N.W.2d 71 (2015) (standard of review for attorney discipline—de novo review)
- Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990) (authority supporting broad reading of "means prohibited by law" to include judicial‑code violations)