State ex rel. Counsel for Dis. v. Gast
296 Neb. 687
Neb.2017Background
- William E. Gast, longtime counsel in the long-running State of Florida v. Countrywide Truck Ins. Agency litigation, sent three private communications (a memorandum and two letters) to Douglas County District Court Judge Peter C. Bataillon and opposing counsel Robert Craig after a 2014 bench submission.
- The communications accused the judge of bias, urged recusal, referenced the judge’s reputation and religion, threatened depositions of the judge’s family, and alleged a decades‑old undisclosed relationship between the judge and opposing counsel (a “cover‑up”).
- The district court denied recusal, later entered judgment for Florida, and awarded $15,000 in sanctions for a frivolous recusal motion; the award was not reviewed on appeal because Gast’s license was suspended for unrelated administrative reasons.
- The Counsel for Discipline charged Gast with violations of Nebraska Rules of Professional Conduct §§ 3-503.5(a)(1), 3-508.2(a), 3-508.4(a) and (d), and violation of his oath under Neb. Rev. Stat. § 7-104.
- A referee found some violations and recommended a 30‑day suspension plus two years’ probation; the Counsel for Discipline objected to several findings and recommended a harsher sanction.
- The Nebraska Supreme Court reviewed de novo, found Gast violated the cited rules and his oath, and ordered a 1‑year suspension effective March 3, 2017, followed by 2 years’ probation on reinstatement.
Issues
| Issue | Counsel for Discipline (Plaintiff) Argument | Gast (Defendant) Argument | Held |
|---|---|---|---|
| Did Gast violate § 3-503.5(a)(1) (seeking to influence a judge by means prohibited by law) by his out-of-court communications? | Exhibits A and C attempted to influence the judge to decide on improper, non‑legal grounds and to recuse via extra‑judicial pressure; rule covers means prohibited by judicial‑conduct rules as well as criminal law. | Denied or equivocated; admitted some violation as to A and B but contested C and argued communications stayed within record facts. | Court: Violations established by clear and convincing evidence as to exhibits A and C (and A admitted); rule interpreted broadly to include attempts to induce a judge to act contrary to judicial‑conduct rules and extra‑judicial communications. |
| Did Gast violate § 3-508.2(a) (making reckless or knowingly false statements about a judge’s integrity) by accusing the judge of a “cover‑up” in exhibit B? | The allegation was objectively false and made without an objectively reasonable factual basis; this meets reckless‑disregard standard. | Claimed belief in the assertion and contended statement was characterization or opinion, not a provably false assertion. | Court: Proven by clear and convincing evidence that Gast acted with reckless disregard; the “cover‑up” charge was not supported and was more than opinion. |
| Did Gast violate §§ 3-508.4(a) and (d) (violating rules and conduct prejudicial to administration of justice) and his oath (§ 7-104)? | The communications violated other professional rules and breached his oath by undermining judicial integrity and using improper means. | Gast admitted violations of these provisions in his answer. | Court: Admissions stand; violations and oath breach sustained. |
| What is the appropriate sanction? | Counsel for Discipline: Suspension greater than referee’s 30 days given cumulative misconduct and lack of remediation/remorse. | Gast: (No effective mitigation argued at oral argument; no exceptions brief filed.) | Court: 1‑year suspension, then eligibility to apply for reinstatement with 2 years’ probation; costs to be paid. |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204 (2009) (discusses rule 3.5(a) issues and refused to limit analysis to criminal acts alone)
- State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566 (2015) (disciplinary proceedings are original to the Nebraska Supreme Court and reviewed de novo)
- State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995 (2017) (disciplinary charges require clear and convincing proof and framework for sanction analysis)
- Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990) (broader interpretation of "means prohibited by law" to include violations of judicial ethics and professional rules)
- State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400 (2016) (recent appellate history of the underlying litigation and sanctions context)