State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Walz

869 N.W.2d 71

State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, Relator

v.Kristin Renee Walz, Respondent.

No. S–12–275.

Supreme Court of Nebraska.

Filed August 14, 2015.

John W. Steele and Kent L. Frobish, Assistant Counsels for Discipline, for relator.

John D. Rouse, Lincoln, for respondent.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Disciplinary Proceedings: Appeal and Error.In attorney discipline and admission cases, the Nebraska Supreme Court reviews recommendations de novo on the record, reaching a conclusion independent of the referee's findings.

2. Disciplinary Proceedings.The basic issues in a disciplinary proceeding against an attorney are whether the Nebraska Supreme Court should impose discipline and, if so, the appropriate discipline under the circumstances.

3. Disciplinary Proceedings.Under Neb. Ct. R. § 3–304, the Nebraska Supreme Court may impose one or more of the following disciplinary sanctions: (1) disbarment; (2) suspension; (3) probation in lieu of or subsequent to suspension, on such terms as the court may designate; (4) censure and reprimand; or (5) temporary suspension.

4. Disciplinary Proceedings.To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance and reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the respondent generally, and (6) the respondent's present or future fitness to continue in the practice of law.

5. Disciplinary Proceedings.When determining appropriate discipline, the Nebraska Supreme Court considers aggravating and mitigating factors.

6. Disciplinary Proceedings.The propriety of a sanction in an attorney discipline case must be considered with reference to the sanctions imposed in prior similar cases.

Per Curiam.

INTRODUCTION

The issue in this attorney discipline proceeding is what discipline should be imposed on Kristin Renee Walz (Respondent) for violating certain provisions of the Nebraska Rules of Professional Conduct.

Respondent pled no contest and was convicted of a felony. Respondent admits that she was convicted of making terroristic threats, a Class IV felony, pursuant to Neb. Rev. Stat. § 28–311.01 (Reissue 2008). The referee recommended disbarment, and after our review, we conclude that disbarment is the proper sanction.

BACKGROUND

On September 3, 2010, Respondent was admitted to the practice of law in the State of Nebraska. At the time of the events set forth herein, Respondent was engaged in the private practice of law in Lancaster County, Nebraska.

Respondent was initially charged with second degree domestic assault and use of a weapon to commit a felony. She was accused of assaulting her husband with a knife. The State later amended the charges to first degree assault and use of a deadly weapon to commit a felony. Respondent has consistently denied causing her husband's injuries and has maintained that she was asleep when the injuries occurred.

At some point, Respondent's husband admitted to police that Respondent had cut him with a knife. He later recanted and explained his statement was made while he was sleep deprived, under the influence of drugs, and under pressure by

the police. He also stated that he made the statement to hide the fact that he had acquired drugs illegally and was under the belief that he could simply refuse to press charges. He stated that he was eating cake in bed and was under the influence of pain medication. He claimed he fell asleep, rolled over on the knife, and was injured as a result.

Pursuant to a plea agreement, Respondent pled no contest to one count of making terroristic threats. She was convicted on March 9, 2012, and was sentenced to 1 to 3 years' imprisonment with credit for 55 days served. She began her sentence July 3 and was released on parole in December. Her parole ended in July 2013.

On April 4, 2012, the Committee on Inquiry of the First Judicial District filed an application with this court for temporary suspension of Respondent's license to practice law. We entered an order suspending Respondent until further order of the court. Respondent remains under suspension pursuant to that order.

On October 31, 2012, formal charges were filed against Respondent based upon her felony conviction for making terroristic threats. The charges alleged that Respondent had violated the Nebraska Rules of Professional Conduct by committing a criminal act.

Respondent's answer to the formal charges denied she had violated her oath of office as an attorney or Neb. Ct. R. of Prof. Cond. § 3–508.4(a) and (b). A referee was appointed in January 2013, but due to a joint request to stay the proceedings while Respondent's criminal appeal and postconviction relief were pending, the case did not resume until 2014.

On April 30, 2014, a hearing on the formal charges was commenced. Respondent, her husband, and her treating clinical psychologist, Dr. Caryll Palmer Wilson, testified.

We granted the parties' joint motion to continue the report of the referee pending final resolution of Respondent's criminal charges and a motion to withdraw her plea. Respondent's motion to withdraw her no contest plea was subsequently

overruled. The court also found that postconviction relief was no longer available, because Respondent was no longer in custody and there was no allegation that she was on parole.

On August 18, 2014, the referee filed a report, finding that Respondent's conviction of a felony was a violation of her oath of office as an attorney and, specifically, a violation of § 3–508.4(a) and (b). The referee recommended that Respondent be disbarred.

In mitigation, Respondent asserted that she did not commit an act that harmed the public or her clients, she did not commit an act of dishonesty, she did not show herself to be untrustworthy, and she had diligently and capably represented her clients and their interests. She argued that she should be allowed to practice law in the future because the felony conviction did not render her unfit to practice law.

ASSIGNMENT OF ERROR

Neither party has taken exception to the report or factual findings of the referee. Therefore, the only issue is the appropriate sanction under the circumstances. Respondent opposes the referee's recommendation and the Counsel for Discipline's request for disbarment.

STANDARD OF REVIEW

In attorney discipline and admission cases, we review recommendations de novo on the record, reaching a conclusion independent of the referee's findings.¹ The basic issues in a disciplinary proceeding against an attorney are whether the Nebraska Supreme Court should impose discipline and, if so, the appropriate discipline under the circumstances.²

ANALYSIS

Under Neb. Ct. R. § 3–304, this court may impose one or more of the following disciplinary sanctions: “(1) Disbarment by the Court; or (2) Suspension by the Court; or (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) Censure and reprimand by the Court; or (5) Temporary suspension by the Court.”

Section 3–508.4 provides that it is professional misconduct for a lawyer to do either of the following: “(a) violate or attempt to violate the Rules of Professional Conduct[,] knowingly assist or induce another to do so[,] or do so through the acts of another [or] (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness[,] or fitness as a lawyer in other respects.”

Respondent strenuously denied committing the crime of making terroristic threats, and her husband, the purported victim of the crime, also insisted that she did not commit a crime against him. He retracted all statements he had previously made to police and claimed that he originally made the statements while under the influence of drugs and sleep deprivation.

Respondent stated she took a plea deal because she feared a prolonged trial and a conviction of a far more serious crime that could result in years of incarceration. She wanted to avoid a lengthy trial because she had a 17–year–old daughter and a seriously ill husband who relied on her for support, and she wanted to avoid the bad publicity a trial would generate because she is an attorney. She claimed to have exculpatory evidence and intended to continue her pursuit to exonerate herself of the crime.

It is not uncommon for one who accepts a plea bargain to make similar claims after the fact. However, it is not our task in this case to determine the innocence or guilt of Respondent, but only the appropriate discipline to be imposed for the

conviction. We are instructed by Neb. Ct. R. § 3–326(A), which states:

For the purposes of Inquiry of a Complaint or Formal Charges filed as a result of a finding of guilt of a crime, a certified copy of a judgment of conviction constitutes conclusive evidence that the attorney committed the crime, and the sole issue in any such Inquiry should be the nature and extent of the discipline to be imposed.

The certified copy of Respondent's judgment of conviction is conclusive evidence that she was convicted of making terroristic threats, in violation of § 28–311.01. Unless the conviction is vacated, Respondent remains a convicted felon. Therefore, the only issue before us is the discipline to be imposed.

To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, we consider the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance and reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the respondent generally, and (6) the respondent's present or future fitness to continue in the practice of law.³

Each attorney discipline case must be evaluated individually in light of its particular...