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.
- After the matter was submitted, Gast sent three private communications to Judge Bataillon and opposing counsel (Exhibits A, B, C) accusing the judge of bias, urging recusal, threatening depositions, and implying reputational consequences and "cover‑up."
- Gast filed motions to recuse; the district court denied recusal and later awarded Florida $15,000 in sanctions for a frivolous recusal motion. Gast’s appellate brief was not considered because his license was then suspended for unrelated administrative failures.
- The Counsel for Discipline charged Gast with violating Nebraska Rules of Professional Conduct §§ 3‑503.5(a)(1), 3‑508.2(a), 3‑508.4(a)/(d), and his attorney oath under Neb. Rev. Stat. § 7‑104 based on those communications.
- A referee found violations as to Exhibits A and B, but not C, and recommended a 30‑day suspension plus probation; the Counsel for Discipline appealed parts of that recommendation to the Nebraska Supreme Court.
- The Nebraska Supreme Court reviewed de novo, found Gast violated the cited rules (including Exhibits A and C), concluded he made reckless false accusations (Exhibit B), and ordered a 1‑year suspension followed by 2 years’ probation upon reinstatement.
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) | Counsel: Gast’s private communications urged the judge to decide on improper, extra‑judicial grounds (reputation, client health), violating judicial‑conduct norms and the rule. | Gast: He admitted some violation for A/B/C but later tried to withdraw admission as to C and argued he stayed within record facts. | Court: Violations proved for Exhibits A and C; "means prohibited by law" includes breaches of judicial‑conduct rules, not only crimes. Gast waived contest to A/C and violated § 3‑503.5(a)(1). |
| Whether Gast violated § 3‑508.2(a) (false or recklessly false statements about a judge) | Counsel: Gast accused the judge of a "cover‑up" without adequate factual basis—reckless disregard proven. | Gast: Denied knowing falsity; treated statements as opinion or reasonable inference from limited facts. | Court: Held the "cover‑up" accusation was objectively reckless given only hearsay about decades‑old acquaintance; violated § 3‑508.2(a). |
| Whether Gast violated § 3‑508.4(a)/(d) and oath § 7‑104 (professional misconduct; prejudicial conduct; oath violation) | Counsel: Cumulative conduct violated general misconduct rules and his attorney oath. | Gast: Admitted some violations; otherwise largely defended actions as zealous advocacy. | Court: Agreed Gast waived objections to these counts (admitted violations) and that his conduct breached his oath. |
| Appropriate sanction | Counsel: More than a short suspension given cumulative misconduct, lack of remorse, and the need to protect judicial integrity. | Gast: Referee originally recommended 30 days suspension and probation; Gast did not contest sanction actively. | Court: Imposed 1‑year suspension (effective March 3, 2017) and 2 years’ probation upon reinstatement; ordered costs. |
Key Cases Cited
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400 (2016) (background litigation and prior appellate history)
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204 (2009) (discussed limits of § 3‑503.5 and clarified not to confine "means prohibited by law" to criminal acts)
- State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566 (2015) (standard: de novo review in attorney discipline original proceedings)
- State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30 (2016) (cited for factors in determining sanctions and that cumulative misconduct warrants harsher sanctions)