State ex rel. Counsel for Dis. v. Gast, 296 Neb. 687

Background

William E. Gast, longtime counsel for a defendant in prolonged litigation (State of Florida v. Countrywide Truck Ins. Agency), sent three private communications (Exhibits A, B, C) to Douglas County District Judge Peter C. Bataillon and opposing counsel alleging bias and impropriety and urging recusal.
Exhibits included (A) a confidential memorandum implying personal motives and urging termination of the case for the client’s health and the judge’s reputation, (B) a letter accusing the judge and opposing counsel of a “cover-up” of a pre-suit relationship, and (C) a letter urging the judge to “quietly back out” to protect his interests and threatening depositions if he did not recuse.
The Counsel for Discipline charged Gast with violating Neb. Ct. R. of Prof. Cond. §§ 3-503.5(a)(1), 3-508.2(a), and 3-508.4(a),(d), and with breaching his oath under Neb. Rev. Stat. § 7-104.
Gast admitted violating § 3-503.5(a)(1) as to some communications but contested reckless falsity under § 3-508.2(a); he did not effectively withdraw admissions for Exhibits A and C.
The referee found violations as to Exhibits A and B but not C, and recommended a 30-day suspension and 2 years’ probation; the Counsel for Discipline filed exceptions.
The Nebraska Supreme Court reviewed de novo, found clear-and-convincing evidence of multiple rule violations (including attempting to influence a judge by improper means and making reckless accusations), and ordered a 1-year suspension followed by 2 years’ probation on reinstatement.

Issues

Issue	Counsel for Discipline (Plaintiff)	Gast (Defendant)	Held
Did Gast violate § 3-503.5(a)(1) by attempting to influence a judge by means prohibited by law?	Gast’s private communications urged the judge to decide on improper, non‑legal grounds and thus attempted to influence the judge in violation of the rule.	He admitted some violations but contested others and argued limited scope of the rule (and later equivocated).	Held: Yes. § 3-503.5(a)(1) covers attempts to influence via means prohibited by judicial/ethics rules (not limited to criminal acts); Exhibits A and C violated the rule.
Did Gast violate § 3-508.2(a) by making statements about the judge’s integrity with reckless disregard for truth?	The “cover-up” allegation in Exhibit B was objectively baseless and made with reckless disregard for its truth.	Gast argued he believed the claim and framed it as characterization or opinion, not an objectively false assertion.	Held: Yes. The allegation of a “cover-up” lacked an objectively reasonable factual basis and satisfied reckless-disregard standard.
Did Gast violate other professional-conduct provisions and his oath (§ 3-508.4(a),(d); § 7-104)?	The communications also constituted professional misconduct prejudicial to the administration of justice and violated his oath.	Gast admitted violations of these provisions in his answer.	Held: Yes. Gast waived objections and the court agreed he violated these provisions and his oath.
What sanction is appropriate?	Suspension appropriate given multiple serious, cumulative violations, lack of remorse, and need to protect the profession and deter others.	Gast emphasized long career, no prior discipline, client-focused motivation; sought leniency.	Held: Suspension for 1 year (effective March 3, 2017), then 2 years’ probation upon reinstatement; costs to be paid.

Key Cases Cited

State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204 (discussed limits of § 3-503.5 and rejected reading that confines the rule to criminal acts)
State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400 (underlying civil litigation giving rise to conduct and evidentiary context)
State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566 (procedural standard: de novo review of referee recommendations in attorney-discipline original proceedings)
Louisiana State Bar Ass'n v. Harrington, 585 So. 2d 514 (authority construing “means prohibited by law” broadly to include judicial/ethical norms rather than only criminal acts)