State ex rel. Counsel for Dis. v. Birch
309 Neb. 79
| Neb. | 2021Background
- Dwaine L. Birch, admitted to Nebraska bar in 1993, practiced as a solo attorney in Burwell, Nebraska.
- From December 2015 through April 2020, Birch neglected seven probate/estate matters (six in Garfield County, one in Loup County), failing to advance cases despite repeated court and clerk magistrate notices.
- The Counsel for Discipline upgraded investigations to formal grievances after Birch failed to act; Birch continued to neglect the matters after being notified.
- Birch admitted the factual allegations in the formal charges and acknowledged untimely, unprofessional client service; he offered no mitigating circumstances.
- The relator recommended, and Birch accepted, discipline of a 45-day suspension followed by 2 years of monitored probation.
- The Nebraska Supreme Court found the violations proven by clear and convincing evidence and imposed the recommended 45-day suspension and 2-year monitored probation with specified monitoring and reinstatement conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Birch violated professional conduct rules (competence, diligence, conduct prejudicial) and his oath | Relator: abandonment/neglect of seven estates violated Neb. Ct. R. §§ 3-501.1, 3-501.3, 3-508.4(a),(d) and attorney oath | Birch: admitted the facts and did not dispute the violations or offer mitigation | Court: violations established by clear and convincing evidence; oath violated |
| Standard/proof and procedural posture | Relator: disciplinary proceeding is trial de novo on the record; charges must be proved by clear and convincing evidence | Birch: no dispute; submitted to the process and evidence | Court: applied de novo review and clear-and-convincing standard and found proof sufficient |
| Appropriate discipline for the misconduct | Relator: 45-day suspension plus 2 years monitored probation (analogous to Troshynski) | Birch: accepted the relator’s recommended discipline and consented to monitoring | Court: imposed 45-day suspension followed by 2 years of monitored probation and required compliance with §3-316 notifications and costs |
| Terms of reinstatement and monitoring | Relator: reinstatement after suspension contingent on compliance; monitored probation with monthly lists, meetings, office procedures, and reporting by monitor | Birch: agreed to monitoring and to work with monitoring attorney | Court: set detailed monitoring plan (monthly case lists, monthly meetings, office procedures, monitor reporting of violations) and conditions for reinstatement and contempt if notification requirements not met |
Key Cases Cited
- Counsel for Dis. v. Gast, 298 Neb. 203, 903 N.W.2d 259 (Neb. 2017) (disciplinary proceedings reviewed de novo on the record)
- Counsel for Dis. v. Island, 296 Neb. 624, 894 N.W.2d 804 (Neb. 2017) (clear-and-convincing standard and factors for assessing discipline)
- State ex rel. Counsel for Dis. v. Troshynski, 300 Neb. 763, 916 N.W.2d 57 (Neb. 2018) (comparable discipline: 45-day suspension plus 2-year monitored probation for a solo practitioner’s neglect)
- State ex rel. Counsel for Dis. v. Nich, 279 Neb. 533, 780 N.W.2d 638 (Neb. 2010) (prior discipline can be considered an aggravating factor)