State ex rel. Counsel for Dis. v. Birch
309 Neb. 79
| Neb. | 2021Background
- Dwaine L. Birch, admitted 1993, solo practitioner 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 the estates despite repeated court and clerk magistrate notices.
- The Counsel for Discipline upgraded investigations to formal grievances after continued nonaction; Birch admitted the factual allegations and acknowledged untimely, unprofessional service but offered no mitigating explanation.
- Formal charges alleged violations of Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (competence), 3-501.3 (diligence), and 3-508.4(a) and (d) (conduct prejudicial to administration of justice), and breach of his attorney oath.
- The relator recommended a 45-day suspension followed by 2 years of monitored probation; Birch accepted that recommendation.
- The Court, invoking Neb. Ct. R. § 3-310(I) (no factual or legal dispute), imposed the recommended discipline and set monitoring, reinstatement, notification, and cost conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent violated professional conduct rules and his oath | Uncontested facts establish neglect and violations of §§ 3-501.1, 3-501.3, 3-508.4(a) & (d) and the attorney oath | Admitted the facts and misconduct; no mitigation offered | Court found violations proven by clear and convincing evidence and breached oath |
| Whether disciplinary charges met applicable standard of proof and procedure | Discipline proceedings are de novo on the record and charges must be shown by clear and convincing evidence | Birch did not contest facts or the relator’s procedure; accepted recommended disposition | Standard satisfied by admissions; Court disposed under Neb. Ct. R. § 3-310(I) |
| Appropriate sanction for the misconduct | Recommend 45-day suspension + 2 years monitored probation (comparable to Troshynski) | Birch agrees to 45-day suspension, monitored probation, and a monitoring attorney | Court imposed 45-day suspension effective immediately, then 2 years monitored probation with specified reporting, monitoring duties, reinstatement conditions, and cost obligations |
Key Cases Cited
- Counsel for Dis. v. Gast, 298 Neb. 203, 903 N.W.2d 259 (Neb. 2017) (disciplinary proceedings are tried de novo on the record)
- Counsel for Dis. v. Island, 296 Neb. 624, 894 N.W.2d 804 (Neb. 2017) (standard for proving charges and factors for imposing discipline)
- State ex rel. Counsel for Dis. v. Troshynski, 300 Neb. 763, 916 N.W.2d 57 (Neb. 2018) (imposition of 45-day suspension plus 2 years monitored probation for comparable neglect)
- State ex rel. Counsel for Dis. v. Nich, 279 Neb. 533, 780 N.W.2d 638 (Neb. 2010) (prior discipline considered as an aggravating factor)