STATE EX REL. COUNSEL FOR DISC. v. Janousek

674 N.W.2d 464

267 Neb. 328

State of NEBRASKA ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, Relator v. Donald R. JANOUSEK, Respondent.

No. S-02-920.

Supreme Court of Nebraska.

January 30, 2004.

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

Donald R. Janousek, pro se.

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

PER CURIAM.

Donald R. Janousek, the respondent, engaged in several instances of stalking and harassing his former girl friend. The sole issue presented in this appeal is the appropriate sanction to be imposed for Janousek's conduct.

SCOPE OF REVIEW

A proceeding to discipline an attorney is a trial de novo on the record, in which the Nebraska Supreme Court reaches a conclusion independent of the findings of the referee. State ex rel. Counsel for Dis. v. James, ante, 267 Neb. p. 186, 673 N.W.2d 214 (2004). However, Janousek did not file an exception to the referee's report, and the sole exception filed by the Counsel for Discipline is that the 2-year sanction recommended by the referee is too lenient. Therefore, the scope of our review is limited to the determination of appropriate discipline.

FACTUAL BACKGROUND

Janousek was admitted to the practice of law in Nebraska in 1977, and he practiced law in Loup City and Ord before moving to Omaha in 2001. Janousek has been the subject of previous disciplinary actions and was privately reprimanded in 1990, 1994, and 1997, although the circumstances in those cases are not similar to the allegations made by the complainant in this case.

The complainant, an African-American mother of two boys, met Janousek socially in 1998, and the complainant and Janousek began dating. In 2000, Janousek represented the complainant briefly in a legal dispute between the complainant and her ex-husband, but when the complainant's ex-husband objected to Janousek's representing the complainant at the same time he was dating her, Janousek withdrew from the case and recommended another attorney to the complainant. The complainant ended her relationship with Janousek in July 2001.

The complainant had lent Janousek money to pay his bar association dues and asked Janousek to repay the money. Janousek responded by denying the debt, using racial slurs, and threatening, in the complainant's words, to "bombard my mailbox with unpleasant things every day and he would drag me to court and he would keep me poor by having me go to court and use my [medical] leave that I needed."

Janousek sent the complainant a letter, dated July 31, 2001, in which he expressed affection for the complainant and apologized for his prior behavior. Janousek acknowledged the debt and promised to pay it back by October 1 at the latest. However, the complainant eventually had to take Janousek to small claims court to recover the debt.

Janousek continued to try to contact the complainant after the July 31, 2001, letter. The complainant received numerous telephone calls, and Janousek also called the complainant's sisters. Janousek came to the complainant's place of work and "boxed [her car] in [with] his car" in the parking lot for "at least half an hour" before some workmen leaving the building prompted Janousek to leave. The complainant obtained a protection order, which Janousek violated. On August 14, Janousek stood outside the complainant's home, pounding and yelling for "at least 45 minutes" before police arrived. Janousek was convicted, pursuant to a no contest plea, of violation of the protection order.

The complainant testified that the day after the protection order issued, she received notice of a lawsuit filed by Janousek, purportedly to recover $10,000 in unpaid legal fees. Janousek asserts this was a counterclaim, not a separate lawsuit. The complainant testified that Janousek's claim was "bogus," because Janousek always demanded to be paid in advance for legal work and the complainant had retained her receipts. The claim was eventually dismissed by Janousek.

The record contains four letters that are particularly important to our disposition of this case, three signed with the complainant's name, and the fourth addressed to the complainant purportedly from the "White Aryan Resistance." The complainant denied writing any of the letters that were signed with her name. All four letters were found by the referee to have been authored and sent by Janousek, and Janousek, appearing pro se, admitted at oral argument that he was responsible for sending the letters.

The letter sent to the complainant from the "White Aryan Resistance" was postmarked September 4, 2001. Because the appalling racist content and threatening overtones of this letter are important to our determination in this case, it is set forth below in its entirety, except that the name of the complainant is omitted:

Dear Mrs. Negro....

In case you're too dumb to notice by now, you ARE being watched. We see it as our duty to keep watch on undesirables in our neighborhoods. You must know why you would be an undesirable.

We keep an eye on where you live, where you work and the college you go to a couple of nights a week. We are hoping that you will just pack up and move back to wherever you came from. Go back and get some of that big jungle cock you colored women crave so much and leave our White men alone.

You might be trying to live White, but you never will be.

Our neighborhood will be much better after you move out. We have not seen those two young thugs of yours around for awhile. Good.

Remember—you are being watched. Every car in back of you could be one of us. Every phone call could be one of us. By the way—your bed looked better with the curved wood headboard. Wear less when you're typing in the basement. Why aren't you sleeping much in your bedroom—that big black ass of yours really is something in the moonlight. It should make some jungle bunny real happy.

We'll see you around. Did you know the lock on your patio screen door needs fixin'?

The complainant testified that the details of her home mentioned in the letter, such as the broken patio door, were accurate and were known to Janousek. The complainant testified that Janousek was aware that her sons had previously lived with her, but had moved in with their father. The complainant also testified that

one of the phone calls I'd gotten from [Janousek] was that he knew where I slept and that, you know, he could shoot through the window. Something— the gist of it was that, yeah, you know, be careful where you sleep. He knew where the bedroom was, and I was really frightened because he had been in Vietnam, he knew how to work a gun. And yeah, my head was right—you could shoot through the window and hit me.

Attached to the letter was a photocopied pornographic picture, depicting a man ejaculating in the mouth of a black woman. Underneath the picture was the handwritten caption, "Bet this makes you hungry!" The complainant testified that although the woman in the picture was not the complainant, the woman resembled the complainant.

The next letter, also postmarked September 4, 2001, was sent to Janousek's former attorney and was signed with the complainant's name. That attorney had represented Janousek in the protection order case, and the complainant had been upset by some of the attorney's cross-examination of the complainant when she testified on the matter. The letter accused the attorney of being "mentally disturbed." The letter also contained vaguely threatening language, telling the attorney that she would "need to watch your step from here on" and stating that "[Janousek] found out what happens when people mess with me and you will, too."

The third letter, dated September 3, 2001, was sent to the complainant's attorney and was signed with the complainant's name. The complainant's attorney had been recommended to the complainant by Janousek after he withdrew from representing the complainant. The letter told the complainant's attorney that she should conclude the complainant's case immediately, that "I have paid you more than enough for what little work I have seen," and that the complainant would no longer pay her attorney fees. The complainant found out about the letter when her attorney attempted to withdraw from representing her.

The final letter was postmarked September 4, 2001, and was sent to the registrar's office of the complainant's graduate school. The letter, again signed with the complainant's name, informed the registrar that the complainant wanted to immediately withdraw from her master's degree program and all her classes because she was moving out of town and getting married. The complainant found out about the letter only when the director of the program congratulated the complainant on her upcoming wedding.

The complainant also described an incident that occurred on September 11, 2001, for which she believed Janousek was responsible. The complainant's sister lived in New York, and Janousek was aware of that fact. On September 11, the complainant received a message at work that a public relations person from a New York hospital was trying to reach the complainant and that the complainant needed to return the call right away. The complainant tried to call the hospital but was unable to get through for some time. When the complainant finally reached the hospital, she found that no one had called her workplace and that the message she had received was a hoax.

PROCEDURAL HISTORY

The complainant filed a grievance with the office of the Counsel for Discipline on September 26, 2001. Janousek did not respond to inquiries from the Counsel for Discipline that were sent to him on November 28, 2001, and January 7 and March 28, 2002. Formal charges were filed on August 19, 2002, alleging that the letters sent by Janousek, as described above, constituted violations of Janousek's oath of office, see Neb.Rev.Stat. § 7-104 (Reissue 1997), and Canon 1, DR 1-102(A), of the Code of Professional...