State ex rel. Coun. for Dis. v. Wickenkamp

759 N.W.2d 492

277 Neb. 16

STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, Relator, v. Mary C. WICKENKAMP, Respondent.

No. S-07-1313.

Supreme Court of Nebraska.

January 23, 2009.

John W. Steele, Assistant Counsel for Discipline, for relator.

No appearance for respondent.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

INTRODUCTION

The Counsel for Discipline of the Nebraska Supreme Court, relator, filed formal charges consisting of three counts against respondent, Mary C. Wickenkamp. After service, Wickenkamp did not respond to the formal charges. Relator moved for judgment on the pleadings. On May 7, 2008, this court entered judgment limited to the facts and reserved ruling on the appropriate sanction until after briefing and oral argument. After reviewing the matter, we find that the proper sanction is disbarment.

STATEMENT OF FACTS

Wickenkamp was admitted to the practice of law in Nebraska on September 22, 1980. She conducted a private practice in Lincoln, Nebraska. Wickenkamp received two prior private reprimands, on December 18, 2000, and October 30, 2003, and was previously the subject of reported discipline in 2007.

In State ex rel. Counsel for Dis. v. Wickenkamp, 272 Neb. 889, 725 N.W.2d 811 (2007) (Wickenkamp I), this court found by clear and convincing evidence that Wickenkamp had violated: Canon 1, DR 1-102(A)(1) (violating disciplinary rule), DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and DR 1-102(A)(5) (engaging in conduct prejudicial to administration of justice); Canon 6, DR 6-101(A)(3) (neglecting legal matter); and Canon 7, DR 7-101(A)(2) (failing to carry out contract of employment for professional services); as well as her oath of office, Neb.Rev.Stat. § 7-104 (Reissue 1997). This court suspended Wickenkamp's license to practice law for a 12-month period beginning on January 12, 2007. After the conclusion of her 12-month suspension on January 12, 2008, Wickenkamp did not seek reinstatement.

Formal charges were again filed against Wickenkamp on June 12, 2007. These charges give rise to the instant case. Because the conduct occurred before and after this court adopted the Nebraska Rules of Professional Conduct, certain allegations are brought under the now-superseded Code of Professional Responsibility and other allegations are brought under the rules. See State ex rel. Counsel for Dis. v. Switzer, 275 Neb. 881, 750 N.W.2d 681 (2008). Because relator was unable to obtain service of process on Wickenkamp within the required 6-month time period, the case was dismissed and relator refiled the charges on December 13. On February 14, 2008, relator asked this court for permission to serve Wickenkamp by publication. In support of this request, relator attached to its affidavit a letter from Wickenkamp which stated that she had moved from Nebraska and does not intend to practice law in Nebraska in the future.

On February 20, 2008, this court sustained relator's motion to serve Wickenkamp by publication. Wickenkamp did not respond to the formal charges. On April 15, relator moved for a judgment on the pleadings. On May 7, this court granted judgment on the pleadings as to the facts alleged in the formal charges, but directed that the case proceed to briefing and oral argument on the issue of discipline.

The formal charges, which are uncontested and make up the record in this case, involve three separate incidents. First, in 2005, Wickenkamp represented Lloyd Trackwell, Jr. (Lloyd Jr.), and the Trackwell family in the sale of a parcel of real estate to B & J Partnership, Ltd. (B & J). The sale of land between B & J and the Trackwell family was to close on July 15, 2005. On July 12, B & J's in-house counsel contacted Wickenkamp and informed her that his client wanted to postpone the July 15 closing and possibly cancel the deal.

On July 13, 2005, Lloyd Jr. hand delivered a letter to a B & J principal threatening a breach of contract action if the closing did not take place on July 15. The letter further stated that any lawsuit would also contain a claim for antitrust violations that would have the potential to "`effectively eviscerate [B & J] and its holdings.'" B & J's in-house counsel e-mailed Wickenkamp stating that he had no problem with Wickenkamp's contacting a B & J principal with issues involving the contract negotiations, but that she was not to contact B & J principals directly regarding possible litigation. Wickenkamp was advised that any discussions about litigation should be directed to B & J's outside counsel. Wickenkamp replied that she would not communicate with B & J's outside counsel because she believed that he had a conflict of interest.

On July 14, 2005, Wickenkamp had a letter delivered to another B & J principal, A. Joyce Smith. The letter stated that the Trackwell family still intended to close on July 15 and went on to state possible bases for a lawsuit if B & J failed to close as agreed. On July 15, the Trackwell family and Wickenkamp appeared for the closing but B & J did not. Wickenkamp prepared a letter stating that they were at the closing and that they had expected B & J to appear. Wickenkamp had Lloyd Jr. hand deliver the letter to Smith.

On July 18, 2005, on behalf of Judith Trackwell, Wickenkamp filed a complaint in the U.S. District Court for the District of Nebraska against B & J and its representatives alleging breach of contract, tortious interference with a business relationship, and violations of federal and state antitrust laws. That same day, Lloyd Jr. personally delivered the summons and copies of the complaint to B & J's office and signed and filed returns of service indicating that he had personally served the individual defendants. Also on that same day, Wickenkamp had Lloyd Jr. hand deliver a letter to Smith accusing Smith of attempting to avoid service and stating that Wickenkamp would continue to communicate directly with Smith, because Wickenkamp believed that B & J's outside counsel had a conflict of interest. A second letter from Wickenkamp to Smith was delivered later that day by Lloyd Jr. This letter stated that "`any conveyances of property, real or person (sic) from [B & J] to any other party in an attempt to protect the assets of [B & J] will be fully prosecuted under the Nebraska Fraudulent Conveyances statutes.'"

On July 19, 2005, Wickenkamp arranged for the delivery of two additional letters directly delivered to Smith. One letter was a settlement offer, and the other letter stated that Wickenkamp was serving B & J with a subpoena. In the second letter, Wickenkamp again stated that she would not communicate with B & J's outside counsel. Wickenkamp had another letter hand delivered to Smith on July 21. This letter warned that Wickenkamp would file an amended complaint in federal court raising additional claims against B & J unless B & J paid the balance of the contract price by the close of business on July 22. The July 21 letter also threatened to subpoena various B & J representatives for depositions in a state condemnation case then pending regarding a parcel of real estate adjacent to the real estate in dispute in the federal case. According to the formal charges the state case was referred to as "City of Lincoln v. Trackwell, CI-04-3289."

On July 26, 2005, Wickenkamp had the threatened subpoenas and a subpoena under what is now codified as Neb. Ct. R. Disc. § 6-330(b)(6) for corporate response served on the B & J principals and B & J's in-house counsel. As warned in the July 21 letter, the subpoenas were not issued out of the federal case, but, rather, were issued out of the separate state court condemnation case. The only issue before the court in the state case was the market value of the condemned parcel of land and the amount of any severance or consequential damages. The § 6-330(b)(6) subpoena sought discovery unrelated to the issues before the state court, including, inter alia, information relating to a disciplinary complaint filed by Wickenkamp against B & J's outside counsel, communications between B & J and a title company, development plans of B & J, communications between B & J and lending institutions, and communications with contractors regarding development of the property.

On July 28, 2005, Wickenkamp filed the first amended complaint in the federal court case, raising additional claims against B & J. On July 29, Wickenkamp filed a second amended complaint adding additional defendants to the federal lawsuit. On August 1, Wickenkamp sent B & J's in-house counsel another demand letter stating that unless B & J paid the Trackwells the contract price plus compensatory damages by noon on August 4, Wickenkamp would file a third amended complaint adding claims under the federal Racketeer Influenced and Corrupt Organizations Act. Apparently after receiving the August 1 letter, B & J and its principals retained a new law firm.

After Wickenkamp filed a third amended complaint, counsel for the defendants moved to disqualify Wickenkamp as counsel of record for the Trackwells, arguing that she would be a witness in the trial of the matter and for sanctions against Wickenkamp for her abusive and bad faith conduct in the prosecution of the Trackwells' claims and in related litigation. Prior to the court's ruling on the motion to disqualify, Wickenkamp withdrew as counsel. The federal magistrate judge ultimately found that Wickenkamp's behavior was abusive and unnecessarily escalated a simple breach of contract case into a case alleging illegal if not criminal conduct by B & J and sanctioned Wickenkamp personally in the amount of $33,631. The federal district court judge affirmed the order.

Relator alleged that the acts of Wickenkamp in her representation of the Trackwells violated § 7-104, Wickenkamp's oath of office as an attorney licensed to practice law in the State of Nebraska, and the...