State ex rel. Counsel for Dis. v. Wolfe
301 Neb. 117
| Neb. | 2018Background
- Tobin D. Wolfe, admitted in Nebraska in 2013, faced 10 disciplinary counts based on client grievances filed April–December 2017.
- Grievances alleged widespread misconduct: poor communication, lack of competence and diligence, failure to account for or refund fees, failure to return files, and misstatements.
- Respondent initially failed to respond to disciplinary inquiries for about eight months; his license was temporarily suspended November 6, 2017.
- Respondent admitted the underlying facts; no exceptions were filed to the referee’s findings.
- Referee found violations of multiple Nebraska Rules of Professional Conduct and the attorney oath, and recommended a 2-year suspension (retroactive to Nov. 6, 2017) plus 2 years supervised probation upon reinstatement.
- Mitigation: respondent presented evidence of an undiagnosed major depressive episode beginning late 2016; referee found treatment would reduce risk of recurrence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent violated professional conduct rules via alleged failures (communication, competence, diligence, fee accounting/returns, responding to disciplinary inquiries) | Counsel for Discipline argued the 10 counts are supported by clear and convincing evidence showing multiple rule violations and oath breach | Wolfe admitted facts and presented mitigation (mental health) but did not dispute violations | Court found violations of Neb. Ct. R. §§ 3-501.1, 3-501.3, 3-501.4, 3-501.5(f), 3-501.16(d), 3-508.1(b), and 3-508.4 and breach of oath; granted joint motion for judgment on the pleadings |
| Appropriate discipline given the misconduct and mitigation | Relator endorsed referee’s recommended 2-year suspension + 2-year supervised probation; emphasized deterrence and public protection | Wolfe agreed to proposed sanction and emphasized mitigating mental-health evidence and lack of prior discipline | Court adopted referee’s recommendation: 2-year suspension effective Nov. 6, 2017, then 2 years monitored probation upon reinstatement, with conditions (treatment monitoring, practice monitoring, monthly reporting) |
| Reinstatement fitness requirements | Relator required proof of treatment compliance and fitness before reinstatement and monitored probation conditions | Wolfe must prove meaningful sustained recovery and comply with monitoring programs | Court required proof of sustained treatment with a qualified mental-health provider and compliance with Neb. Ct. R. § 3-316 before reinstatement; imposed detailed monitoring conditions on probation |
| Costs and compliance enforcement | Counsel for Discipline sought costs and authority to enforce compliance (contempt) | Wolfe to pay costs and comply with suspension/reinstatement rules | Court directed payment of costs per statutes/rules within 60 days after an order and warned of contempt for noncompliance |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Gast, 298 Neb. 203 (disciplinary proceedings are trial de novo on the record)
- State ex rel. Counsel for Dis. v. Island, 296 Neb. 624 (discipline evaluation factors and standards for attorney misconduct)
- State ex rel. Counsel for Dis. v. Simon, 288 Neb. 385 (comparison case: multiple counts plus mental-health mitigation; prior suspension/probation structure)
- State ex rel. Counsel for Dis. v. Nich, 279 Neb. 533 (prior discipline considered as an aggravating factor)