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 clients.
- 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 a "cover‑up," urging recusal, and suggesting the judge should protect his own reputation or face public exposure.
- Gast filed motions to recuse based on newly alleged social ties between the judge and opposing counsel; the judge denied recusal after a hearing.
- The 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.
- A referee found certain rule violations and recommended a 30‑day suspension plus probation; the Nebraska Supreme Court reviewed de novo, found multiple violations by clear and convincing evidence, and imposed a 1‑year suspension followed by 2 years’ probation on reinstatement.
Issues
| Issue | Plaintiff's Argument (Counsel for Discipline) | Defendant's Argument (Gast) | Held |
|---|---|---|---|
| Whether sending private, extra‑judicial communications urging a judge to decide based on matters outside record violated § 3‑503.5(a)(1) (seeking to influence judge by "means prohibited by law"). | Exhibits A and C improperly sought to influence the judge by urging decisions based on reputation, religion, client health, and other non‑legal factors and by invoking judicial‑ethics norms; such means are "prohibited by law." | Gast largely admitted the violation as to A and B, disputed it as to C (later equivocated), contending his communications were advocacy and based on legitimate recusal concerns. | 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 ethics and professional rules, not just criminal acts. |
| Whether Gast’s statement accusing the judge of a "cover‑up" in Exhibit B violated § 3‑508.2(a) (false statement concerning judge's integrity). | The accusation was false and made with reckless disregard for truth because it rested on unverified, decades‑old social‑acquaintance information from an ex‑spouse and lacked objective factual basis. | Gast contended the statement was opinion or based on reasonable inference and did not meet the reckless‑disregard standard. | Court held Counsel proved falsity and that Gast acted with reckless disregard (objective standard), violating § 3‑508.2(a). |
| Whether Gast could withdraw admissions and contest violations (particularly re: Exhibit C). | Admissions in answer and hearing admissions were binding; any attempted withdrawal was not properly made. | Gast at hearing equivocated, suggesting regret for tone and attempting to back away from admission. | Court held Gast waived the right to contest violations for Exhibits A and C because he admitted them in his answer and did not properly withdraw. |
| Appropriate sanction for cumulative misconduct and lack of remorse. | Discipline required to protect public, deter, and maintain bar reputation; cumulative and aggravating factors (lack of remorse, attacks on Counsel for Discipline) justify significant suspension. | Gast had no prior discipline, was a long‑time practitioner, and posed little risk to clients; mitigation argued for lesser sanction. | Court imposed 1‑year suspension (effective March 3, 2017) with eligibility to seek reinstatement after 1 year and 2 years' probation upon reinstatement; costs ordered. |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204 (Neb. 2009) (discussed scope of § 3‑503.5(a)(1) and rejected limiting it exclusively to criminal acts).
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400 (Neb. 2016) (underlying civil litigation giving rise to disciplinary charges).
- State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566 (Neb. 2015) (disciplinary cases are original proceedings reviewed de novo).
- State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30 (Neb. 2016) (factors and treatment of cumulative misconduct and aggravating/mitigating circumstances in sanctions).
- Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990) (authority recognizing "means prohibited by law" may include judicial‑ethical breaches and not only criminal acts).