State ex rel. Counsel for Dis. v. Nelson
311 Neb. 251
| Neb. | 2022Background
- Patrick J. Nelson, admitted 1976, was administratively suspended June 13, 2018 for failure to meet CLE reporting and reinstated December 7, 2018.
- While suspended he remained counsel of record in five matters (boundary and four estates) but did not inform courts or clients and did not withdraw.
- Post-reinstatement Nelson neglected those matters; several estates incurred penalties ($7,415.81 and $11,409.18) and other matters were dismissed for failure to prosecute.
- Nelson failed to respond to multiple grievance inquiries from the Counsel for Discipline and did not answer the formal charges filed June 10, 2021.
- The Nebraska Supreme Court granted judgment on the pleadings as to the facts, found violations of the Rules of Professional Conduct and § 7-104, and imposed disbarment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nelson violated professional rules and his oath by neglecting client matters and failing to notify courts while suspended | Counsel for Discipline: Nelson violated competence, diligence, communication rules and his oath | Nelson: no answer/no participation | Court: Violations found (Neb. Ct. R. of Prof. Cond. §§ 3-501.1, .3, .4, 3-508.1, 3-508.4; § 7-104) |
| Whether failure to respond to disciplinary inquiries aggravates sanction | Counsel: refusal to cooperate supports severe discipline, including disbarment | Nelson: no response | Court: Failure to respond is aggravating, shows disrespect for disciplinary jurisdiction |
| Whether client harm and public protection justify severe sanction | Counsel: clients suffered financial harm and dismissals; public protection requires stringent action | Nelson: no response | Court: Clients suffered penalties/dismissals; public confidence undermined; aggravating factor |
| Appropriate sanction: disbarment vs suspension/indefinite suspension | Counsel: seeks disbarment or indefinite suspension given cumulative misconduct and noncooperation | Nelson: no response | Court: Disbarment imposed, effective immediately |
Key Cases Cited
- State ex rel. Counsel for Dis. v. Birch, 309 Neb. 79, 957 N.W.2d 923 (2021) (factors for assessing discipline and need to evaluate facts and aggravating/mitigating circumstances)
- State ex rel. Counsel for Dis. v. Sutton, 269 Neb. 640, 694 N.W.2d 647 (2005) (cumulative misconduct and disregard for disciplinary requests often warrant disbarment)
- State ex rel. Counsel for Dis. v. Samuelson, 280 Neb. 125, 783 N.W.2d 779 (2010) (disbarment for abandonment of client matters and mismanagement)
- State ex rel. Counsel for Dis. v. Villarreal, 267 Neb. 353, 673 N.W.2d 889 (2004) (practicing while under temporary suspension can be independent basis for disbarment)
- State ex rel. Counsel for Dis. v. Gast, 298 Neb. 203, 903 N.W.2d 259 (2017) (importance of responding to Counsel for Discipline and cooperating with process)
- State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d 530 (2016) (indefinite suspension has been used but is generally not preferred for public protection)
- State v. Jorgenson, 302 Neb. 188, 922 N.W.2d 753 (2019) (disciplinary proceedings focus on public protection and whether attorney should be permitted to practice)