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

311 Neb. 251

971 N.W.2d 777

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

v.Patrick J. NELSON, Respondent.

No. S-21-475.

Supreme Court of Nebraska.

Filed March 25, 2022

Per Curiam.

INTRODUCTION

On June 13, 2018, attorney Patrick J. Nelson was administratively suspended from the practice of law for his failure to satisfy continuing education reporting requirements. He was reinstated on December 7. During the period of his suspension, Nelson was the counsel of record for several clients, but failed to inform the court and clients that he was suspended. As a result, on July 11, 2019, Nelson received a private reprimand as discipline. Subsequently, the Counsel for Discipline of the Nebraska Supreme Court brought this action, and Nelson did not file an answer or otherwise participate in these proceedings. We granted the Counsel for Discipline's unopposed motion for judgment on the pleadings as to the facts and reserved the issue of the appropriate sanction. We now order that Nelson be disbarred.

STATEMENT OF FACTS

The facts alleged in the formal charges are uncontested by Nelson. Nelson was admitted to the practice of law in the State of Nebraska on July 2, 1976. He engaged in the private practice of law in Kearney, Nebraska, and is under the jurisdiction of the Committee on Inquiry of the Sixth Judicial District.

Pursuant to Neb. Ct. R. § 3-309(H) (rev. 2011), the allegations drafted by the Counsel for Discipline were reviewed by the Committee on Inquiry of the Sixth Judicial District, which determined that there are reasonable grounds for discipline of Nelson and that the public interest would be served by the filing of formal charges.

As background within the narrative of the formal charges, it was stated that on June 13, 2018, pursuant to Neb. Ct. R. § 3-401.11(D) (rev. 2017), we suspended Nelson from the practice of law because he had failed to satisfy the mandatory continuing legal education reporting requirements for 2017. Notice was sent by regular mail to Nelson's business address. Later that year, on December 7, 2018, we reinstated Nelson's license to practice law.

On June 10, 2021, formal charges were filed. The formal charges give rise to this current disciplinary proceeding and consist of five counts concerning cases in which Nelson was the counsel of record during the period of his suspension.

Count I.

The first count alleges that Nelson was responsible for "Trampe Bros. L.L.C. vs. Charity Field Farm, Inc.," in the district court for Phelps County, Nebraska, originally filed in January 2016. The case involved a boundary dispute arising from the changing riverbed of the Platte River. The defendants filed an answer through counsel, and the matter was vigorously pursued in court. On November 16, 2017, the defendant's counsel filed a motion to strike all pleadings filed by Nelson on the basis that he signed pleadings as " ‘The Law Office of Patrick J. Nelson, L.L.C.,’ " when, in fact, his limited liability company had been dissolved by the Secretary of State in June 2015. Nelson did not contest the motion to strike. On February 8, 2018, Nelson filed a dismissal of the case without prejudice. On March 7, Nelson refiled Todd Trampe's case. The defendant filed its answer, but Nelson filed no further pleadings. When Nelson's law license was administratively suspended on July 13, he did not inform Trampe or the court that his license was suspended. Subsequently, Trampe's case was dismissed for failure to progress the case. When Trampe contacted Nelson concerning the case dismissal, Nelson sent him a letter on September 25, stating that " ‘[a]s a result of my miss-calendering (sic) the matter in connection with the court's show cause deadline, we will re-file the case.’ " Nelson did not inform Trampe that his license had been suspended. After Nelson's license was reinstated in December, he did not refile Trampe's case or inform Trampe that he was not going to refile the case.

Although Nelson was the attorney of record in the case, he failed to inform the court of his suspension and failed to withdraw as counsel. On August 6, 2020, Trampe filed a grievance with the Counsel for Discipline, alleging that Nelson had neglected his case and had not kept him informed about the status of his case. Nelson did not respond to numerous requests by the Counsel for Discipline informing him of the grievance and requesting his response. To date, Nelson has not responded to the Counsel for Discipline regarding this matter.

Count II.

When Nelson's license was suspended on June 13, 2018, he was representing the personal representative for the estate of Betty Dorothy in the county court for Buffalo County, Nebraska. Although Nelson was attorney of record in the case, he failed to inform the court of his suspension and failed to withdraw in the case.

After Nelson's license was reinstated on December 7, 2018, he continued his representation in the Dorothy estate case; however, by August 2019, Nelson failed to take any further actions in the case. Nelson failed to file an inventory as directed by the court, and he did not communicate with his client regarding the case. On November 7, 2019, the county court issued an order directing Nelson to appear in court on December 10. Nelson failed to appear in court. The personal representative subsequently hired new counsel. As a result of Nelson's neglect, the estate was assessed $7,415.81 in penalties and interest for the late payment of the inheritance tax.

Count III.

When Nelson's license was suspended on June 13, 2018, he was representing the personal representative for the estate of Neal Maloley in the county court for Buffalo County. Although Nelson was attorney of record in the case, he failed to inform the court of his suspension and failed to withdraw as counsel.

After Nelson's license was reinstated on December 7, 2018, he continued his representation in the Maloley estate case; however, by May 2020, Nelson failed to take any further actions in the case. As a result of Nelson's neglect of the case, the personal representative hired new counsel on or about May 28.

Count IV.

When Nelson's license was suspended on June 13, 2018, he was representing the personal representative for the estate of Janet Altmaier in the county court for Buffalo County. Although Nelson was attorney of record in the case, he failed to inform the court of his suspension and failed to withdraw as counsel.

After Nelson's license was reinstated on December 7, 2018, he continued his representation in the Altmaier estate case; however, by February 2020, Nelson failed to take any further actions in the case. As a result of Nelson's neglect of the case, the personal representative hired new counsel on or about February 20. As a result of Nelson's neglect, the estate was assessed $11,409.18 in penalties and interest for the late payment of the inheritance tax.

Count V.

Prior to the suspension of Nelson's license on June 13, 2018, on November 21, 2017, Nelson had filed an "Application for Informal Probate of Will" in the estate of Emma Kring in the county court for Kearney County, Nebraska. Nelson was representing the personal representative for the estate of Kring. Despite a May 11, 2018, letter to Nelson from the clerk magistrate of the Kearney County Court informing him that an inventory needed to be filed in the Kring estate by June 11, no inventory was timely filed. On July 13, the county court issued an order to show cause, because the inventory had not been filed. Nelson prepared the inventory and filed it on August 2. On November 15, the court entered an order stating that the Kring estate case would be closed in 60 days if nothing was filed in the case. Although Nelson's license was reinstated on December 7, he took no further action in the Kring estate case. On March 1, 2019, the case was dismissed by the court.

Procedural History.

Formal charges were filed on June 10, 2021, and Nelson did not file an answer. On August 27, we granted the Counsel for Discipline's motion for judgment on the pleadings as to the facts, finding that Nelson violated his oath of office as an attorney licensed to practice law in the State of Nebraska as provided by Neb. Rev. Stat. § 7-104 (Reissue 2012) and several provisions of the Nebraska Rules of Professional Conduct. With respect to counts I through V, Nelson violated Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (rev. 2017) (competence), 3-501.3 (diligence), 3-501.4 (client communications), and 3-508.4(a) and (d) (rev. 2016) (misconduct). With respect to count I, Nelson violated Neb. Ct. R. of Prof. Cond. § 3-508.1 (failure to respond to disciplinary authority). The parties were directed to file briefs on the issue of discipline. The Counsel for Discipline seeks either disbarment or indefinite suspension. Nelson did not file a brief.

The only question before this court is the appropriate discipline.

ANALYSIS

Because Nelson did not answer the formal charges, this court granted the Counsel for Discipline's motion for judgment on the pleadings as to the facts. Having concluded that Nelson violated the Nebraska Rules of Professional Conduct and his oath of office as an attorney, see § 7-104, we must determine the appropriate sanction.

Violation of a disciplinary rule concerning the practice of law is a ground for discipline. State ex rel. Counsel for Dis. v. Birch , 309 Neb. 79, 957 N.W.2d 923 (2021). The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the appropriate discipline under the circumstances. See id. Neb. Ct. R. § 3-304 of the disciplinary rules provides that the following may be considered as discipline for attorney misconduct:

(A) Misconduct shall be grounds for:

(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)

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