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

856 N.W.2d 570

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

v.James E. Connor, respondent.

No. S–13–963

Supreme Court of Nebraska.

Filed December 12, 2014

Kent L. Frobish, Assistant Counsel for Discipline, for relator.

Thomas J. Anderson, of Thomas J. Anderson, P.C., L.L.O., and Tim J. Kielty 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.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 of the 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. Disciplinary Proceedings.Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances. In addition, the propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases.

Per Curiam.

I. NATURE OF CASE

The issue presented in this attorney discipline proceeding is what discipline should be imposed on James E. Connor, respondent, for violating certain provisions of the Nebraska Rules of Professional Conduct and his oath of office as an attorney. These violations occurred while respondent was serving as guardian and conservator for Geraldine Dell and as attorney for the personal representative of her estate.

The referee recommended a 90–day suspension of respondent's license to practice law without any subsequent period of probation. Respondent does not challenge the factual findings of the referee or the allegations in the formal charges, but takes two exceptions to the referee's report. Respondent takes exception to the referee's finding that posttraumatic stress disorder (PTSD) was not a mitigating factor and to the recommendation of a 90–day suspension of respondent's license to practice law.

Respondent's violations are undisputed, and in light of the various factors present in this case, we suspend respondent for a period of 30 days with a subsequent 1–year period of monitored probation.

II. FACTS

On September 12, 1979, respondent was admitted to practice law in Nebraska, and he engaged in the private practice of law in Omaha, Nebraska, at all times relevant to this case. This disciplinary proceeding relates to formal charges originally filed on November 1, 2013, by the Counsel for Discipline of the Nebraska Supreme Court, relator, and amendments filed on December 26, 2013, and April 24, 2014.

Relator alleged that certain conduct by respondent from approximately 2005 to 2012 violated respondent's oath of office as an attorney and the Nebraska Rules of Professional Conduct. Count I alleged that respondent's acts and omissions during his guardianship and conservatorship of Dell violated Neb. Ct. R. of Prof. Cond. §§ 3–501.1 (competence), 3–501.3 (diligence), and 3–508.4 (misconduct). Count II alleged that respondent's acts and omissions during his

legal representation of the personal representative and residual beneficiary of Dell's estate, Thomas J. Hurst, violated §§ 3–501.1, 3–501.3, and 3–508.4, as well as Neb. Ct. R. of Prof. Cond. § 3–501.15 (safekeeping property).

The referee's hearing was held on February 27 and March 12, 2014. Testimony was offered from respondent, Hurst, Hurst's new attorney, and respondent's secretary, and a total of 56 exhibits were admitted into evidence. The substance of the referee's findings based on evidence adduced at the hearing and respondent's admissions of the allegations contained in the formal charges may be summarized as follows:

1. Count I

On January 24, 2003, respondent caused to be filed in the Douglas County Court a petition to appoint himself as temporary and permanent guardian and conservator for Dell, his cousin. The appointment came after Dell was found unconscious on the floor of her home and was hospitalized. Dell had never married and had no children. On February 28, the court appointed respondent as guardian and conservator for Dell. Following her hospitalization, Dell resided in several assisted living facilities and never again resided in her home. Respondent had authority to sell Dell's home in Omaha.

Respondent, as guardian and conservator, was ordered to file an inventory with the court within 90 days of his appointment. Respondent failed to file an inventory within the 90 days. In response, the court issued an order to show cause directing respondent to file the inventory by July 15, 2003. Respondent filed an inventory on July 25, which listed Dell's home at a value of $28,600, together with bonds, mutual funds, mortgages, notes, cash, and insurance totaling nearly $220,000. He failed to timely file annual accountings of the estate assets and annual reports of Dell's condition.

Dell died on February 5, 2006, but respondent did not file an application to terminate the guardianship and conservatorship until August 12, 2009. He did not timely file his final accounting, and over a period of several years, respondent repeatedly requested continuances of court hearings related to closing the estate.

2. Count II

Subsequent to Dell's death, respondent located her “Last Will and Testament,” and on September 14, 2006, he filed an “Application for Informal Probate” in Douglas County Court. The will nominated Dell's friend, Margaret Fogerty, to serve as personal representative of the estate, and on September 21, Fogerty was so appointed by the court.

Respondent did not file an inventory for the estate until March 8, 2007. On the inventory, respondent again listed the estate's assets, including the house in Omaha, at approximately $220,000. Respondent and Fogerty opened an account for the estate at a bank in Omaha.

On April 25, 2007, Fogerty died, but respondent did not learn of her death for several months. After Fogerty's death, the successor personal representative named in Dell's will refused to serve. Respondent persuaded Hurst to serve as personal representative of the estate. Hurst accepted only on the condition that respondent assume all the duties and responsibilities of the personal representative and that Hurst not be required to write a “whole bunch of checks.” Hurst is a second cousin to both Dell and respondent and is the residual beneficiary of Dell's estate. The court appointed Hurst as personal representative, and Hurst retained respondent as his attorney.

After respondent failed to appear at a scheduled hearing to close the estate on July 2, 2008, the court issued a show cause order directing respondent to close the estate by August 26. Respondent admitted that he repeatedly asked for continuances throughout 2008 and 2009 because he and Hurst were trying to renovate Dell's house for sale. Respondent admitted that he did not seriously turn his attention to the house until the spring of 2009.

By 2009, the house had become rundown and had severely depreciated in value. Realtors who appraised the house opined that it would take $35,000 to $45,000 to renovate and restore the property to a potential market value of $75,000 to $80,000. At respondent's suggestion, Hurst agreed to undertake renovations in preparation for sale. The project started in the summer of 2009 and was completed in May 2011, at which time the house sold for $72,000. Personal property was

removed from the house and placed in storage. Storage fees totaled $2,825.

Respondent used cash drawn from the estate checking account to pay for much of the renovation. When he prepared an accounting after the house was sold, he discovered an apparent shortfall between cash expenditures and receipts that he had obtained from the contractor.

Respondent failed to file an “Inheritance Tax Worksheet” until August 3, 2012, and the inheritance tax was not paid until September 6. The accrued penalty interest on the tax was $2,057.34. Respondent reimbursed the penalty interest when the estate was finally closed.

On October 8, 2012, Hurst dismissed respondent as his attorney, and in a December 18 grievance letter to relator, Hurst complained that it had taken more than 6½ years to close the estate, which had still not been closed at the time Hurst filed the complaint.

Hurst filed a “Petition for Surcharge and Judgment” against respondent in Douglas County Court on January 31, 2013. Hurst retained an attorney to represent him, and the attorney performed an accounting that showed an apparent shortfall of $13,893.54. It was not until the hearing on February 27, 2014, that respondent was finally able to account for nearly all the cash expenditures he made as Hurst's attorney.

Relator filed formal charges against respondent on November 1, 2013. A hearing before the referee was held on February 27 and March 12, 2014.

3. Referee's Findings

On count I, the thrust of which was a lack of competence and diligence while serving as Dell's guardian and conservator, the referee found that respondent's conduct violated his oath of office. The referee found by clear and convincing evidence that respondent failed to timely file the initial inventory, as well as annual accountings and reports, causing the court to repeatedly issue orders to show cause. He also failed to file his final accounting and to terminate the guardianship and conservatorship until 3 years after Dell's death. The referee found

those actions to be a failure to provide competent representation and reasonable diligence and promptness.

The referee rejected relator's claims that respondent's actions in failing to sell Dell's home amounted to...