State ex rel. Counsel for Dis. v. Pearson
310 Neb. 256
Neb.2021Background:
- Gary R. Pearson, admitted 1976, faced formal disciplinary charges alleging misconduct in four matters (three estate fee matters and one trust-account matter); charges filed Oct 13, 2020; referee hearing Apr 1, 2021.
- Referee found by clear and convincing evidence violations of multiple Nebraska Rules of Professional Conduct: competence, unreasonable fees, safekeeping client funds, candor toward tribunal, false statements in disciplinary matters, and general misconduct; also concluded he violated his attorney oath (§ 7-104).
- Facts largely undisputed or stipulated: Pearson charged and collected excessive fees in multiple estate matters, made false statements in at least one pleading and to the relator, and improperly maintained his trust account.
- Referee noted no prior discipline, offered mitigating evidence (age, military service, character letters, cooperation), but found respondent not fully candid and tending to minimize conduct.
- Referee recommended 1–2 year suspension; neither party filed exceptions; the Court granted relator’s motion for judgment on the pleadings and imposed an 18-month suspension and costs.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unreasonable fees (Counts I–III) | Relator: Pearson charged and collected excessive/unreasonable estate fees in multiple matters, violating § 3-501.5(a). | Pearson: Billing errors were oversight, carelessness; no prior misconduct; clients were charged for work done. | Court: Violations proved by clear and convincing evidence; fee rules violated. |
| False statements / lack of candor (Wysong) | Relator: Pearson made false statements in court pleadings and to relator, violating candor rules and § 3-508.1(a). | Pearson: Asserted mistakes and minimized misstatements; not charged with misappropriation. | Court: False statements/candor violations established. |
| Trust account safekeeping (Count IV) | Relator: Pearson failed to safekeep client funds, keeping personal funds in trust account, violating § 3-501.15. | Pearson: Characterized issues as accounting errors/oversight. | Court: Safekeeping violations established. |
| Appropriate discipline | Relator: Suspension warranted given multiple rule violations and false statements. | Pearson: Mitigating factors (age, service, no prior discipline, cooperation) justify lesser sanction. | Court: Suspension appropriate; imposed 18-month suspension (within referee’s 1–2 year recommendation). |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Wolfe, 301 Neb. 117 (2018) (disciplinary proceedings are reviewed de novo and violations must be proved by clear and convincing evidence)