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

305 Neb. 396

940 N.W.2d 279

STATE of Nebraska EX REL. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator,

v.Evangelos A. ARGYRAKIS, respondent.

No. S-19-059.

Supreme Court of Nebraska.

Filed March 27, 2020

Julie L. Agena, Assistant Counsel for Discipline, for relator.

Evangelos A. Argyrakis, pro se.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

The issue in this attorney discipline proceeding is what discipline should be imposed on Evangelos A. Argyrakis for violating the Nebraska Rules of Professional Conduct.

Argyrakis pleaded no contest to knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult, a Class IIIA felony. At the plea hearing, when asked for a factual basis for the plea, the prosecutor said that if the matter proceeded to trial, the State would show that Argyrakis, in the course of a verbal argument, repeatedly punched his 83-year-old father in the face, resulting in observable injuries. Neither Argyrakis nor his counsel objected to the factual basis.

The referee recommended disbarment, and after our review, we conclude that disbarment is the proper sanction.

BACKGROUND

Procedural History.

Argyrakis was admitted to the practice of law in Nebraska on September 14, 1992. At all times relevant to these proceedings, he was licensed to practice law in the State of Nebraska.

Argyrakis was initially charged in the district court for Douglas County with strangulation, a Class IIIA felony. The information, filed May 10, 2018, identified the victim as Argyrakis’ father and alleged that the crime took place on April 8.

On June 25, 2018, the relator hand-delivered to Argyrakis a letter notifying him that he was under investigation in connection with the pending criminal case and asking him to provide a written response within 15 working days. A few days later, Argyrakis sent an email to the relator in which he stated that "[t]his matter was a domestic dispute where I was not the aggressor." He requested that the relator await the conclusion of the criminal proceedings before continuing the investigation. The relator notified Argyrakis that any further action would be withheld until the criminal case was resolved, but also asked that Argyrakis advise the relator as to the status of the case.

On September 24, 2018, Argyrakis pleaded no contest to an amended information charging him with knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult, a Class IIIA felony. The amended information again identified the victim as Argyrakis’ father and alleged that the crime was committed on April 8. He was sentenced to 3 years’ probation, with terms that included chemical testing and a mental health evaluation. Argyrakis failed to report the plea and sentencing to the relator.

After the Committee on Inquiry of the Second Judicial District concluded that there were reasonable grounds for discipline of Argyrakis and that the public interest would be served by the filing of formal charges, formal charges were filed against Argyrakis on January 23, 2019. The formal charges alleged that Argyrakis had violated the Nebraska Rules of Professional Conduct by committing a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects. Argyrakis filed an answer to the formal charges in which he admitted allegations regarding the fact of his conviction and sentence, but failed to either admit or deny whether he violated the Nebraska Rules of Professional Conduct.

Hearing.

On May 3, 2019, a hearing on the formal charges was commenced. Argyrakis represented himself at the hearing.

The relator offered certified copies of documents reflecting the charges, plea agreement, and sentence in the criminal case. The relator also called Argyrakis to testify. In his testimony, Argyrakis admitted that he pleaded no contest to and was found guilty of vulnerable adult abuse against his father. Argyrakis denied that he was convicted of a crime of violence, because, in his words, he "was not the aggressor." Argyrakis also acknowledged that since 2010, he had seen five different doctors for mental health therapy and medication management; that he had undergone two mental health evaluations, one prior to the April 2018 incident and one after; and that he was currently taking three different medications for mental health issues.

After being questioned by counsel for the relator, Argyrakis made a statement under oath. He stated that during his childhood, his father physically and emotionally abused him and that he witnessed his father physically abusing his mother. He testified to his belief that he had always represented clients diligently and effectively and that no clients had ever complained about his services. He also testified that he did not intend to harm his father, that he had attempted to get help for the circumstances that led to the incident, and that he did not believe a similar incident would happen again.

Argyrakis also called Regina Schulze to testify. Schulze, a licensed independent mental health professional, testified that she began providing weekly mental health counseling to Argyrakis in December 2018. Schulze diagnosed Argyrakis with depressive disorder, panic disorder, and post-traumatic stress disorder. She testified to her opinion that these issues contributed to the incident between Argyrakis and his father and that she did not expect any physical altercations in the future. On cross-examination, she admitted that she based these conclusions solely upon information provided by Argyrakis and that she had not reviewed any of his prior medical records, mental health evaluations, or other documentation concerning his condition.

Following the close of evidence, the referee directed the parties to file briefs addressing whether Argyrakis was convicted of a crime of violence. The referee expressed hesitation as to whether the crime of abuse of a vulnerable adult would always constitute a crime of violence. In particular, the referee observed that the crime could be committed through neglect or exploitation, and he noted that it was not clear that would amount to a crime of violence.

On May 9, 2019, the relator filed a motion to reopen the record. The relator sought to supplement the record with the transcript of the plea proceedings in Argyrakis’ criminal case. The relator contended it was relevant to the issue of whether Argyrakis committed a crime of violence. The referee took the motion under advisement, but allowed the relator to conditionally proceed with the evidence.

When allowed to proceed with evidence, the relator introduced the transcript of the proceeding in which Argyrakis entered his plea in the criminal case. At that proceeding, the prosecutor said that the State was pursuing the charge against Argyrakis on the ground that he physically injured his father. Further, when asked for the factual basis for the plea, the prosecutor stated that if the matter proceeded to trial, the evidence would show that during an argument between Argyrakis and his 83-year-old father, Argyrakis repeatedly punched his father in the face, causing observable injuries. Neither Argyrakis nor his counsel objected to the factual basis for the plea, and Argyrakis stated on the record that he was satisfied with the representation provided by his counsel.

The referee later granted the motion to reopen the record.

Referee’s Report.

The referee filed a report and recommendation. The referee found, by clear and convincing evidence, that Argyrakis violated Neb. Ct. R. of Prof. Cond. § 3-508.4(b) (rev. 2016) and his oath of office as an attorney.

The referee specifically analyzed whether Argyrakis was convicted of a crime of violence. The referee concluded such analysis was necessary based on his understanding that this court ruled in State ex rel. Counsel for Dis. v. Walz¹ that disbarment is the appropriate sanction for conviction of a felony crime of violence "absent extraordinary mitigation." The referee concluded that Argyrakis was convicted of a crime of violence.

The referee also considered potential mitigating circumstances. He found that Argyrakis’ lack of a prior disciplinary record in over 25 years of practice was a mitigating circumstance. He found that Argyrakis had not accepted responsibility for his misconduct and that thus, that was not available as a mitigating circumstance. He also found that Argyrakis’ mental health diagnosis should not be considered in mitigation.

The referee explained that under State ex rel. Counsel for Dis. v. Thompson ,² in order for mental health to be considered in mitigation, Argyrakis was required to show (1) medical evidence that he is affected by a mental health condition, (2) that the condition was a direct and substantial contributing cause to the misconduct, and (3) that treatment of the condition will substantially reduce the risk of further misconduct. The referee concluded that Argyrakis had not made the required showing under Thompson , explaining little weight could be afforded to Schulze’s opinions that a mental health issue caused his misconduct and that treatment of the condition would substantially reduce the risk of further misconduct, because those opinions were formed solely on the basis of self-reporting by Argyrakis.

The referee recommended disbarment.

ASSIGNMENT OF ERROR

Neither party has taken exception to the report of the referee. Therefore, the only issue is the appropriate sanction under the circumstances. Argyrakis opposes the referee’s recommendation and the relator’s request for disbarment.

STANDARD OF REVIEW

Because attorney discipline cases are original proceedings before this court, we review a referee’s recommendations de novo on the record, reaching a conclusion independent of the referee’s findings.³

ANALYSIS

Neither party filed exceptions to the referee’s report and recommendation. In those circumstances, the...