State v. Boyum

291 Neb. 696

STATE OF NEBRASKA EX REL. COUNSEL FOR DISCIPLINEOF THE NEBRASKA SUPREME COURT, RELATOR, v. BRADLEY A. BOYUM, RESPONDENT.

No. S-14-578.

SUPREME COURT OF NEBRASKA

August 28, 2015

Original action. Judgment of suspension.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

PER CURIAM.

INTRODUCTION

On February 4, 2015, amended formal charges containing one count were filed by the office of the Counsel for Discipline of the Nebraska Supreme Court, relator, against respondent, Bradley A. Boyum. Respondent filed an answer to the amended formal charges on February 9. A referee was appointed, and the referee held a hearing on the charges. Respondent and a client of respondent appeared at the hearing and testified, and exhibits were admitted into evidence.

The referee filed a report on May 13, 2015. With respect to the amended formal charges, the referee concluded that respondent's conduct had violated Neb. Ct. R. of Prof. Cond. §§ 3-501.3 (diligence), 3-501.4(a)(3) (communications), and 3-508.4 (misconduct). The referee further found that respondent had violated his oath of office as an attorney licensed to practice law in the State of Nebraska. See Neb. Rev. Stat. § 7-104 (Reissue 2012). With respect to the discipline to be imposed, the referee recommended a 60-day suspension, andas a condition of reinstatement, that respondent complete 6 hours of legal education in the area of professional responsibility, and that upon reinstatement, if accepted, respondent be placed on monitored probation for a period of 2 years. Neither relator nor respondent filed exceptions to the referee's report. Relator filed a motion for judgment on the pleadings under Neb. Ct. R. § 3-310(L) (rev. 2014) of the disciplinary rules. We grant the motion for judgment on the pleadings as to the facts and impose discipline as indicated below.

STATEMENT OF FACTS

Respondent was admitted to the practice of law in the State of Nebraska on September 21, 2004. At all times relevant to these proceedings, he was engaged in the practice of law in Omaha, Nebraska.

On June 30, 2014, relator filed formal charges against respondent, and on February 4, 2015, relator filed amended formal charges against respondent. The amended formal charges contained one count generally regarding respondent's failure to communicate with a client and respondent's failure to perform the legal work for the client for which respondent had been paid. The formal charges alleged that by his conduct, respondent violated his oath of office as an attorney and §§ 3-501.3, 3-501.4(a)(3) and (4), and 3-508.4(a) and (d). On February 9, 2015, respondent filed his answer to the amended formal charges, generally denying the allegations set forth in the amended formal charges.

A referee was appointed on October 24, 2014, and the referee held a hearing on the amended formal charges. Respondent and the client testified at the hearing, and exhibits were admitted into evidence.

After the hearing, the referee filed his report and recommendation on May 13, 2015. The substance of the referee's findings may be summarized as follows: Respondent first met the client in December 2011, and on February 26, 2012, the client emailed respondent to schedule a meeting "'to start our estate process.'" The initial estate planning meeting occurredon March 2 and lasted approximately 1 hour. At the end of the meeting, respondent gave the client a folder containing an asset information booklet.

No followup meeting was scheduled. At the hearing, the client was asked whether he told respondent how quickly he wanted to proceed, and the client stated, "'Quite the opposite. I told him I was not in a hurry.'" Respondent testified that he believed the client would contact him when the client was ready to take the next step. There were no additional contacts between respondent and the client in 2012.

On January 16, 2013, the client called respondent to discuss an unrelated matter, and at that time, respondent brought up the topic of estate planning. Respondent's notes from the January 16 telephone call stated that "'[the client] is still working on the asset booklet but they are planning on doing the Living Trust packet.'" Respondent's notes further stated that respondent "'[d]id [an] estate plan draft,'" and respondent testified at the hearing that that meant he had "'entered information into a drafting program.'"

On January 28, 2013, respondent created a document titled the client's "Estate Plan Drafting Notes" (emphasis in original), and according to these notes, respondent "'[d]rafted Estate Plan for [the client] after our conversation from January 16, 2013 because he said he was going forward with the Living Trust packet.'" Respondent testified at the hearing that he did not intend to show the original draft of the estate plan to the client. Respondent's notes listed some of the information that respondent still needed to gather in order to complete the estate plan for the client.

Respondent took no steps between January 28 and June 17, 2013, to gather the missing information for the estate plan. Respondent testified at the hearing that he took no action at this time, because the client "'wanted to control the speed of the process, the estate planning process.'" The client testified at the hearing that he did not remember whether he wanted to move forward with the estate planning process in January 2013.

The client initiated a meeting with respondent for estate planning purposes, and that meeting was held on June 17, 2013. At that meeting, the client formally told respondent that he wanted to go forward with the estate planning process. The client paid respondent a retainer of $1,700, and the client signed a legal services agreement. The legal services agreement provided that respondent "'will prepare the following estate planning documents for client: [six documents are identified],'" and it further provided that the client agreed that "'Attorney's Fees shall be paid as follows: Initial Retainer of $1700.'" The legal services agreement set forth the client's responsibilities, including: "'Before Law Firm has an obligation to perform any services for Client, Client must sign this agreement and make the payment required in paragraph 3 above.'" The client and his wife both signed the contract. The legal services agreement did not explicitly set forth other details of how and when the work was to be performed.

Respondent contended that at the conclusion of the June 17, 2013, meeting, he did not have all of the information he needed to complete the work identified in the legal services agreement. The referee noted in his report that at the hearing, respondent "was unable to describe what additional information he needed" and that respondent "became clearly evasive about what information he may have needed to complete work on the estate plan." Respondent did not inform the client that respondent might need additional information from the client and that respondent might be contacting the client to obtain additional information.

At the end of the June 17, 2013, meeting, the client's understanding was that he would receive a draft of the estate plan from respondent and that he would be able to review the draft before the plan was finalized. The client was unaware that respondent did not intend to send a draft of the estate plan to the client. The referee stated in his report that he found that the client had "expressed desire to receive a draft to review at the June 17, 2013 meeting."

The referee stated in his report that the schedule to complete the estate planning work was left open. The referee further stated that respondent asserted that the arrangement was for the client to contact respondent when he needed some work completed. Conversely, the client expected respondent to call him sometime after the meeting on June 17, 2013, to inform the client when the documents were ready to be reviewed.

On August 19, 2013, the client called respondent and left a message. Respondent returned the call and left a message. On September 9, the client called respondent "'to get this estate process going.'" Respondent did not answer, and the client left a message. Late on September 9, respondent sent the client an e-mail stating, "'I saw I missed your call. I will call you in the morning.'" Respondent called the client at 6:22 p.m. on September 10. The client answered the call, but he indicated that it was not a convenient time to talk. The client stated that he would call respondent back, but he did not.

Beginning on January 21, 2014, the client attempted numerous times to contact respondent to let respondent know he was ready and wanting to move forward. The client attempted to contact respondent via: a call on January 21, a call on January 27, two calls on February 4, an e-mail on February 4, two calls on February 6, a call on February 18, a call on February 20, and three calls on February 25. Respondent did not respond to any of the client's attempts to contact him.

On February 25, 2014, the client called relator because he was upset that he could not reach respondent. The client wrote a grievance letter, which relator received on February 27. On March 4, relator sent respondent a letter with a copy of the grievance. The March 4 letter was mailed certified, return receipt, and addressed to respondent's correct office address. The referee noted in his report that return receipt has never been returned, and the letter itself has never been returned. Respondent testified at the hearing that he did not receive theMarch 4 letter. An exhibit received at the hearing showed a copy of a U.S. Postal Service tracking screen which showed that the March 4 letter was delivered on March 5 to area code 68154, although not the specific address or addresses.

On April 2, 2014, the client was in respondent's office building on an unrelated matter, and the client asked respondent to meet with him. Respondent met the client,...