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.
- After a bench submission in April 2014, Gast sent three out‑of‑court communications to Judge Bataillon and opposing counsel (exhibits A, B, C) accusing the judge of improper motives, urging recusal, and threatening depositions/subpoenas.
- Gast filed motions to recuse based on alleged undisclosed social ties between the judge and opposing counsel; the judge denied recusal after a hearing.
- The Counsel for Discipline charged Gast with 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 his attorney oath; Gast admitted some violations in his answer but contested others at hearing.
- A referee recommended a 30‑day suspension and two years’ probation; the Nebraska Supreme Court reviewed de novo and imposed a 1‑year suspension with 2 years’ probation upon reinstatement, finding clear and convincing evidence of multiple rule violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gast sought to influence a judge by means prohibited by law (§ 3‑503.5(a)(1)) via exhibits A, B, C | Exhibits urged the judge to decide on improper, extra‑judicial grounds (reputation, religion, client health) and threatened private pressure — thus attempting to influence the judge in violation of the rule | Gast contended (and admitted in part) he was zealously advocating; later equivocated about admitting a violation as to exhibit C and argued his communications stayed within record facts | Court held Gast violated § 3‑503.5(a)(1) for exhibits A and C (and waived contest as to A and C); ruled the prohibition covers means barred by judicial and professional codes, not only criminal acts |
| Whether Gast made false statements about the judge with reckless disregard for truth (§ 3‑508.2(a)) (exhibit B alleged a “cover‑up”) | Counsel for Discipline: allegation of a ‘‘cover‑up’’ was false and Gast had no objectively reasonable basis—he relied solely on an unverified social anecdote—so the charge satisfies reckless‑disregard standard | Gast contended he believed the assertion and characterized it as opinion; argued not knowingly false | Court held Gast’s “cover‑up” accusation was false and made with reckless disregard for its truth, violating § 3‑508.2(a) |
| Whether other misconduct provisions and oath were violated (§ 3‑508.4(a),(d); § 7‑104) | Misconduct here also violated general rules and the attorney oath | Gast admitted violations of some provisions and waived contest | Court found violations of § 3‑508.4(a) and (d) and that Gast breached his oath |
| Appropriate sanction | Counsel for Discipline sought harsher discipline than referee (who recommended 30‑day suspension) given cumulative misconduct and lack of remorse | Gast offered no brief and showed little remorse; argued mitigation (long career, no prior discipline) | Court considered nature, deterrence, reputation, public protection, attitude, fitness; imposed 1‑year suspension (effective Mar 3, 2017) with 2 years’ probation upon reinstatement |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204 (discussed limits of § 3‑503.5 and clarified not to read it as limited to criminal acts)
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400 (context of underlying litigation and prior appellate history)
- State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566 (standard for de novo review in attorney discipline cases)
- Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990) (construction of "means prohibited by law" to include violations of judicial/ethical rules)