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 client. The underlying case produced multiple appeals and a bench judgment for Florida in 2015.
- After the 2014 bench submission, Gast sent three out‑of‑court communications to Judge Bataillon and opposing counsel (Exhibits A, B, C): a confidential memorandum (A) and two letters (B, C) that urged recusal and attacked the judge’s integrity and motives. The communications included threats of depositions/subpoenas and suggested the judge decide for reasons beyond law and record (e.g., reputation, “Christian upbringing,” client’s health).
- Gast filed motions to recuse based on alleged undisclosed social ties between Judge Bataillon and opposing counsel; the judge denied recusal after a hearing in which the judge acknowledged limited past social contact decades earlier.
- The Counsel for Discipline charged Gast with violations of Nebraska Rules of Professional Conduct §§ 3‑503.5(a)(1) (improper attempts to influence a judge), 3‑508.2(a) (false or recklessly false statements about a judge), and 3‑508.4(a) & (d) (professional misconduct / conduct prejudicial to administration of justice), and with violating his attorney oath (§ 7‑104).
- A referee found violations as to Exhibits A and B but not C and recommended a 30‑day suspension + 2 years probation; Counsel for Discipline appealed some findings. The Nebraska Supreme Court reviewed de novo and found violations of the cited rules and the oath, imposed a 1‑year suspension (effective March 3, 2017) followed by 2 years’ probation upon reinstatement, and ordered costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gast sought to influence a judge by means prohibited by law (Neb. Ct. R. Prof. Cond. § 3‑503.5(a)(1)) via Exhibits A, B, C | Gast’s communications improperly urged the judge to decide for reasons outside law/record and via extra‑judicial/private pressure; this violates rule 3‑503.5(a)(1). | Gast admitted A and B; he disputed or equivocated about C and argued his statements were within record‑based advocacy. | Court: A and C (and B) violated § 3‑503.5(a)(1); "means prohibited by law" includes violations of judicial and professional conduct rules, not only criminal acts; Gast waived contest to A and C and conduct violated rule. |
| Whether Gast made false statements or acted with reckless disregard about the judge’s integrity (Neb. Ct. R. Prof. Cond. § 3‑508.2(a)) — Exhibit B ("cover‑up") | The allegation of a decades‑long "cover‑up" was false and Gast had no objectively reasonable factual basis (relying only on a third‑hand spouse conversation), so he acted with reckless disregard. | Gast contended the claim was an opinion or reasonable inference from facts and did not show reckless disregard. | Court: Held Gast’s "cover‑up" accusation was false and made with reckless disregard (objective standard), violating § 3‑508.2(a). |
| Whether other charged provisions and oath were violated (§§ 3‑508.4(a),(d); § 7‑104) | Counsel for Discipline alleged violations and that conduct was prejudicial to administration of justice and breached oath. | Gast admitted violations in his answer of these provisions (waived contest). | Court: Agreed; Gast violated § 3‑508.4(a),(d) and his attorney oath under § 7‑104. |
| Appropriate sanction | Counsel for Discipline urged significant suspension given cumulative misconduct, lack of remorse, and need to protect public and bar reputation. | Referee recommended 30‑day suspension + 2 years probation; Gast pointed to long career without prior discipline and lack of harm to clients. | Court: Imposed 1‑year suspension (effective March 3, 2017) and 2 years’ probation upon reinstatement; considered aggravating (lack of remorse, cumulative misconduct) and mitigating (no prior discipline, competence). |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204 (clarified scope of § 3‑503.5 and rejected limiting it to criminal acts)
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400 (underlying litigation context; discussed sanctions and appeals)
- State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566 (standard of review for disciplinary proceedings)
- State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995 (disciplinary proof standard and analysis framework)
- Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (authority holding "means prohibited by law" includes violations of judicial canons, not only criminal acts)