State ex rel. Counsel for Dis. v. Gast
296 Neb. 687
| Neb. | 2017Background
- William E. Gast, long-time counsel for a defendant in protracted litigation (State of Florida v. Countrywide Truck Ins. Agency), sent three private communications to District Judge Peter C. Bataillon and opposing counsel in 2014 asserting bias and urging recusal.
- The communications included (A) a confidential memorandum suggesting personal motives and invoking the defendant’s health and the judge’s reputation, (B) a letter accusing the judge and opposing counsel of a "cover-up" of a pre-suit friendship, and (C) a letter threatening depositions and urging the judge to "quietly back out" to protect his interests.
- Counsel for Discipline charged Gast with violating Nebraska Rules of Professional Conduct §§ 3-503.5(a)(1), 3-508.2(a), and 3-508.4(a) & (d), and his oath under Neb. Rev. Stat. § 7-104.
- At the referee hearing Gast admitted violating § 3-503.5(a)(1) as to some communications but later equivocated; the referee recommended a 30-day suspension with two years’ probation.
- The Nebraska Supreme Court reviewed de novo, found clear and convincing evidence Gast violated the cited rules (including making reckless false allegations of a "cover-up"), 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 sought to influence a judge by means prohibited by law (§ 3-503.5(a)(1)) | Gast used extra-judicial, private communications to urge rulings based on judge’s reputation, personal interests, and client health—thus seeking influence prohibited by judicial-code norms | Gast admitted some violation but later argued he was mistaken or equivocated; claimed communications stayed within facts and courtroom record | Court: Held Gast violated § 3-503.5(a)(1) as to exhibits A and C (and waived contest as to B/C admissions); “means prohibited by law” includes violations of judicial code and ethical rules, not only criminal acts |
| Whether Gast made statements about a judge’s integrity with reckless disregard for truth (§ 3-508.2(a)) | The "cover-up" allegation was false and Gast had no objectively reasonable factual basis (reliance on an unverified conversation relayed by his wife) | Gast contended statements were opinions or reasonable inferences, not knowingly false | Court: Held Gast acted with reckless disregard and thus violated § 3-508.2(a) with respect to exhibit B |
| Whether Gast engaged in conduct prejudicial to administration of justice and violated other misconduct rules (§ 3-508.4(a),(d)) | Cumulative private attacks on judge’s integrity and attempt to influence constituted prejudicial conduct | Gast admitted these violations in his answer (and later equivocated) | Court: Agreed Gast violated § 3-508.4(a) and (d); admissions waived objections |
| Appropriate sanction | Counsel urged suspension appropriate given seriousness, cumulative misconduct, and lack of remediation | Gast’s mitigation: long career, no prior discipline, motivated to help client; argued referee’s lighter sanction sufficient | Court: Suspended Gast for 1 year, then 2 years probation on reinstatement; considered aggravating lack of remorse and prior conduct; rejected referee’s 30-day suspension |
Key Cases Cited
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883 N.W.2d 69 (Neb. 2016) (underlying civil litigation facts and prior appellate history)
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204, 769 N.W.2d 378 (Neb. 2009) (discipline case discussed for interpretation of "by means prohibited by law")
- Louisiana State Bar Ass'n v. Harrington, 585 So. 2d 514 (La. 1990) (authority rejecting narrow criminal-only reading of "means prohibited by law")