State ex rel. Counsel for Dis. v. Thew
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Nebraska Advance Sheets
state ex rel. counsel for dis. v. thew
Cite as 281 Neb. 171
171
been raised before it. We find no merit to the county attorney’s
assignment of error.
(d) Failure to Show Cause
The county attorney also argues, generally, Schropp and the
district court have not shown cause that the court’s discovery
orders should not be set aside. But this argument is not encompassed by the county attorney’s assignments of error, and errors
argued but not assigned will not be considered on appeal.51
V. Conclusion
For these reasons, we conclude that the county attorney’s
appeal was not taken from a final, appealable order, and we
affirm the decision of the Court of Appeals dismissing her
appeal in case No. S-10-361. We also conclude that the county
attorney has failed to meet her burden of showing clearly and
convincingly that she is entitled to have the district court’s
orders vacated, and we deny her request for a peremptory writ
of mandamus in case No. S-10-831.
Judgment in No. S-10-361 affirmed.
Peremptory writ in No. S-10-831 denied.
Wright, J., not participating.
51
See Shepherd v. Chambers, ante p. 57, ___ N.W.2d ___ (2011).
State
of Nebraska ex rel.
Counsel for Discipline
Supreme Court, relator, v.
Peter T. Thew, respondent.
of the Nebraska
___N.W.2d___
Filed March 4, 2011.
Nos. S-09-567, S-09-820, S-10-380.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The basic issues in a disciplinary proceeding against a lawyer are whether
discipline should be imposed and, if so, the type of discipline under the
c
ircumstances.
3. ____. With respect to the imposition of attorney discipline in an individual case,
the Nebraska Supreme Court evaluates each attorney discipline case in light of its
particular facts and circumstances.
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4. ____. 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 offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
5. ____. The determination of an appropriate penalty to be imposed on an attorney
in a disciplinary proceeding requires the consideration of any aggravating or
mitigating factors.
6. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
Original actions. Judgment of disbarment.
Kent L. Frobish, Assistant Counsel for Discipline, for
r
elator.
Robert Wm. Chapin, Jr., of Chapin Law Office, for respond
ent in Nos. S-09-567 and S-09-820.
Peter T. Thew, pro se.
Connolly, Gerrard, Stephan, and McCormack, JJ., and
Irwin, Judge.
P er Curiam.
I. NATURE OF CASE
This case involves attorney disciplinary charges brought
against Peter T. Thew in three separate cases. Amended formal
charges were filed against Thew in case No. S-09-567 on June
16, 2009, in case No. S-09-820 on December 23, 2009, and in
case No. S-10-380 on May 18, 2010. We consolidated these
three cases. Because Thew has admitted to all of the charges,
the only issue now addressed by this court is the appropriate sanction.
II. BACKGROUND
Thew graduated from the University of Nebraska College of
Law in May 2002. Thew worked for a University of Nebraska
office of research until June 2004, when he went into solo private practice. Beyond one semester of civil clinic during law
school, Thew had no experience working in a law office. He
was a solo practitioner until September 16, 2009, when he was
temporarily suspended.
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1. Cases Nos. S-09-567 and S-09-820
Amended formal charges were filed against Thew in case No.
S-09-567 on June 16, 2009, and Thew responded to the charges
on August 13. The application for temporary suspension was
filed on August 18 and was assigned case No. S-09-820. Thew
filed an objection to the temporary suspension and requested a
hearing. On August 27, this court consolidated the two cases
for review and appointed a referee. On September 16, this court
entered an order temporarily suspending Thew from the practice of law. The hearing on the amended formal charges in the
consolidated cases was held on January 12, 2010.
Thew and the relator entered into a stipulation where Thew
admitted all the charges against him. During the hearing, Thew
was asked why he made the decisions that he did, and he
responded:
I mean, I don’t really know for sure why I did it, but the
best I can explain is the fact that upon all these events
happening, I’ve realized that I have some issues as far as
some health issues with depression and that I’ve had these
issues for some time and just haven’t dealt with them and
have pushed them aside and put on a good facade as far as
passing off that, you know, things were fine.
Thew was asked, “And so after neglecting the cases and procrastinating on the cases, your — when confronted by your
clients, you just told them untrue statements to cover yourself;
is that right?” Thew responded, “I wouldn’t — I wouldn’t
— putting it in those terms, no. . . . I think at times I did
make statements that were untrue, but I don’t think that, you
know, when I fell behind I would just tell them things that
weren’t true.”
Although Thew claimed that his depression ought to be
considered as a mitigating factor, the referee found that Thew
had not established that his depression was a factor in his
misconduct, or that treatment would substantially reduce the
risk of further misconduct. Even though Thew stipulated to
the fact that he knowingly made false statements to his clients,
he continued to claim that he had not lied. The referee found
that his clients had not suffered lasting harm but did note that
Thew’s pattern of dishonesty was troubling. Nevertheless, the
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referee recommended a suspension of 120 days, retroactive to
the date of Thew’s temporary suspension, as well as 2 years of
probation. The relator objected, arguing that the sanction was
too lenient.
The following recitation of facts is taken from the referee’s
report in cases Nos. S-09-567 and S-09-820.
(a) Lorin Wiederstein
Thew represented Lorin Wiederstein in a divorce case and
was paid an advance fee of $2,500. The divorce trial was held
on August 7, 2007, and a decree was entered. Thew filed a
notice of appeal on Wiederstein’s behalf on October 5. At no
point in time did Thew provide Wiederstein with a billing statement, nor did he request further payment. Wiederstein retained
new counsel, who requested the case file several times. Thew
did not respond to the requests until March 6, 2008, when he
stated that he would not release the file until his outstanding
bill for legal fees was paid. However, Thew still did not provide a billing statement.
Wiederstein filed a grievance against Thew with the Counsel
for Discipline on May 22, 2008. Notice of the grievance was
sent to Thew the same day, with directions to file a written
response. Thew admitted that he received the notice, but he did
not respond. A second notice was sent June 24, and once again,
Thew failed to respond. On July 15, the Counsel for Discipline
upgraded Wiederstein’s grievance to a formal grievance and
directed Thew to file an appropriate written response within 15
working days. Notice was sent to Thew by certified mail, and
his secretary signed for the letter on July 16.
Thew called the Counsel for Discipline on July 17, 2008,
and stated that he had sent his response the previous week.
Thew’s response to the Counsel for Discipline was dated July
11, 2008, but there was not a postmark from the U.S. Postal
Service. The letter was instead metered by a private postage meter which did not record a date. In the letter, Thew
did not address his failure to respond to requests for the case
file. Instead, Thew claimed to have sent billing statements on
October 16 and November 27, 2007, showing that Wiederstein
owed additional fees. Thew enclosed the billing statements that
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he claimed to have sent to Wiederstein, claiming a balance
owed of $4,437.16. Wiederstein claimed that he never received
a billing statement.
The Counsel for Discipline sent a letter to Thew’s attorney
on December 30, 2008, requesting a complete accounting for
Thew’s trust account from September 14, 2006, to the present.
Thew failed to provide the requested information. The referee
found by clear and convincing evidence that Thew had violated
his oath of office as an attorney and the following provisions
of the Nebraska Rules of Professional Conduct: Neb. Ct. R.
of Prof. Cond. §§ 3-501.4 (communications), 3-501.5 (fees),
3-501.15 (safekeeping property), and 3-508.4 (misconduct).
(b) Luana Gray Conservatorship
Thew was appointed successor guardian and conservator for
Luana Gray on December 20, 2005. Between Thew’s appointment and his removal on April 29, 2008, the county court
issued several orders to show cause why Thew should not be
removed as guardian and conservator due to his failure to file
appropriate documents. During this time, Thew also failed to
pay a medical bill and failed to reimburse Medicare for its
subrogation claim. Although Thew claimed that he sent a check
in payment to Medicare, the check was never cashed. Thew
did not make additional inquiry as to why the check had not
been cashed.
Following the issuance of a second order to show cause after
Thew failed to appear at a hearing on March 11, 2008, Thew
again failed to file the required documents, and he failed to
appear in court. The county court removed him as guardian and
conservator. Although his authority to act was revoked on April
29, Thew did not file an accounting with the court to determine who should receive the funds held in Gray’s guardianship account. Thew finally closed Gray’s guardianship account
on September 2, and a successor guardian and conservator
was appointed.
The referee found by clear and convincing evidence that
Thew violated his oath of office as an attorney and the following provisions of the Nebraska Rules of Professional Conduct:
§§ 3-501.15 (safekeeping property) and 3-508.4 (misconduct),
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and Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (competence) and
3-501.3 (diligence).
(c) Marilyn Hawley Conservatorship
Thew was appointed temporary guardian and conservator for
Marilyn Hawley after two of her children requested a guardian and conservator. The appointment was made permanent on
January 31, 2006. Hawley maintained a checking account with
Wells Fargo Bank, and monthly bank statements were mailed
to Hawley’s former residence. Hawley’s Social Security bene
fits were directly deposited into her checking account.
By April 2006, Thew had made arrangements for Hawley’s
Social Security benefits to be sent directly to the assisted
living center where she resided. However, Thew did not
notify Wells Fargo Bank to change the mailing address of
the bank statements, nor did he notify the bank of his position as guardian and conservator until July 2006. On April
4, 2006, the county court authorized Thew to pay $1,066.25
for attorney fees related to the guardian and conservatorship
proceedings. Although there was more than enough money
in Hawley’s bank account, Thew did not pay the claim until
September 14.
On May 9, 2006, the court issued an order to show cause
to Thew because he had not timely filed an inventory of
Hawley’s assets. Thew filed an inventory on June 6, but he
failed to list the account number, and he inaccurately stated the
account balance, indicating there was $31.09 in the account,
when there was actually $3,202.37. Thew also failed to timely
pay Hawley’s bills for the assisted living center. On June 13,
the administrator of the center sent a letter to Thew demanding payment of Hawley’s bill. Thew did not pay the bill, and
Hawley’s daughter sent a letter to the court stating that Thew
had been neglecting to pay Hawley’s bills. The court issued an
order to show cause on July 17 directing Thew to appear on
August 8. Thew requested a continuance on July 26, which the
court granted.
Thew paid the bill at the assisted living center on July 27,
2006. After that payment was made, Hawley’s daughter sent
a letter to the court stating that she was now satisfied. On
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August 22, the court made a journal entry stating that Thew
was to continue as guardian.
Thew received a check from the buyer of Hawley’s car
in November 2006, but he did not deposit the check until
February 2007. Thew did not reimburse Hawley’s son for
expenses he incurred selling the car, even though he promised to do so. Hawley’s son asked Thew to set aside money
in a prepaid funeral account, but Thew never opened such
an account. Hawley passed away on February 1, 2007, and a
statement for the funeral expenses was faxed to Thew the next
day. Although there were sufficient funds in Hawley’s account,
Thew did not pay the funeral expenses, he failed to notify
the court of Hawley’s death, and he failed to timely file an
annual accounting.
The court issued an order to show cause directing Thew
to file the required reports regarding Hawley and scheduled
a hearing, which was continued three times. Thew filed an
annual account and statement of assets on September 28, 2007.
On April 2, 2008, the court issued an order to show cause
directing Thew to appear in court on May 6, and Thew failed
to appear. On May 12, the court issued a second notice of the
order to show cause and set a hearing date for June 17. The
second notice was sent by certified mail to Thew’s business
address, but Thew failed to claim the letter, and it was returned
to the court.
The court issued a final order to show cause directing Thew
to personally appear in court on July 1, 2008, to show cause
why he should not be held in contempt. The final order was
served on Thew by the Lancaster County sheriff’s office on
June 10. On July 1, the hearing was continued to August 5.
On July 24, Thew filed a motion to allow him to pay Hawley’s
remaining funds into the court. Thew stated that he was unable
to contact Hawley’s heirs, but he had the addresses of all four
of Hawley’s adult children. Thew did not send a copy of the
motion to any of her children.
On July 29, 2008, the court issued an order directing Thew
to pay Hawley’s funds into the court. Thew did not pay
those funds into the court until December 31, after he was
informed that he was under investigation regarding his neglect
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of Hawley’s case. The referee found by clear and convincing evidence that Thew had violated his oath of office as an
attorney and the following provisions of the Nebraska Rules of
Professional Conduct: §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.15 (safekeeping property), and 3-508.4 (misconduct), and Neb. Ct. R. of Prof. Cond. § 3-503.3 (candor toward
the tribunal).
(d) Curt Olson
Curt Olson hired Thew in March 2008 to file suit to recover
on a bill for architectural services in the amount of $12,115.81.
Thew failed to timely file suit, despite assuring Olson that the
case was proceeding in a timely manner. Thew also stated to
Olson that suit had been filed, and he stated that a judgment
had been entered for $12,115.81. Thew knew these statements
were false at the time he made them.
Olson asked for a copy of the judgment, and Thew assured
Olson that he would provide him with a copy. On or about
January 26, 2009, Olson went to Thew’s office to request a
copy in person. Thew stated that the file was at his home. The
next day, Thew gave Olson a document that Thew claimed was
a copy of the order for judgment. Thew knew that suit had not
been filed and that no judgment had been entered when he
delivered the document.
Thew finally filed suit on Olson’s behalf on January 29,
2009, and the case was eventually settled to Olson’s satisfaction. The referee found by clear and convincing evidence that
Thew had violated his oath of office as an attorney and the
following provisions of the Nebraska Rules of Professional
Conduct: §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4
(communications), and 3-508.4 (misconduct).
(e) Laura Swoboda
Laura Swoboda hired Thew in March 2008 to recover on a
loan she had made in the amount of $12,500 plus interest. On
April 8, 2008, Thew filed a complaint, and a default judgment
was entered in Swoboda’s favor in the amount of $17,620.86,
plus costs, on September 19. Thew advised Swoboda to wait 30
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days after the judgment to attempt to collect it by garnishment
or other means.
Beginning in late October 2008, Thew led Swoboda to
believe that garnishment proceedings in the county court were
being pursued in an attempt to recover on the judgment. In fact,
Thew had not begun garnishment proceedings. Swoboda contacted the clerk of the Lancaster County Court on March 17,
2009, and learned that no garnishment proceedings had been
commenced. Swoboda called Thew, who falsely stated that he
had filed the garnishment proceedings in district court. Thew
knew the statement was false when he made it. Thew filed
garnishment proceedings on March 18. Swoboda terminated
Thew as her lawyer and filed a grievance against him with the
Counsel for Discipline on March 20.
The referee found by clear and convincing evidence that
Thew violated his oath of office as an attorney and the following provisions of the Nebraska Rules of Professional Conduct:
§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (communications), and 3-508.4 (misconduct).
(f) Allan Brock
Allan Brock and his adult son were injured in a motor
vehicle collision on August 19, 2005, in Johnson County,
Nebraska. In June 2006, Brock retained Thew to represent him
in his personal injury claim against the other driver and his
own insurance carrier. Thew also agreed to represent Brock’s
son. Thew agreed to a contingency fee agreement, but he did
not present a written contingency fee agreement as required by
§ 3-501.5(c).
On September 21, 2006, Thew sent Brock a draft complaint
he had prepared, which Brock approved. Thew did not file the
complaint until May 16, 2007. In the spring of 2008, Thew told
Brock and his wife that a trial was scheduled for May 28, 2008.
In anticipation of the trial, Brock, his wife, and his son met
with Thew. A few days before the scheduled trial date, Thew
called Brock’s wife and told her that the trial was continued,
and had been rescheduled for December 10. Thew knew no
trial had been scheduled.
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Thew failed to perfect service on the defendants in the
case, so on November 26, 2008, the case was dismissed by the
county court. Thew failed to inform Brock that the case had
been dismissed. Instead, he stated that the trial would be continued to January 7, 2009. Thew knew this statement was false
when he made it. On January 6, Thew called Brock’s wife and
informed her that the case was dismissed because the parties
had not been properly notified. In February 2009, Thew told
Brock that he had refiled the case, but that statement was false,
and Thew knew as much when he made it. Thew did not refile
the case until June 16.
In April, May, and June 2009, Brock, his wife, and his son
attempted to contact Thew about the status of the case, but
Thew failed to return their calls. The referee found by clear and
convincing evidence that Thew violated his oath of office as an
attorney and the following provisions of the Nebraska Rules of
Professional Conduct: §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (communications), 3-501.5 (fees), and 3-508.4
(misconduct).
2. Case No. S-10-380
While cases Nos. S-09-567 and S-09-820 were pending
before this court, amended formal charges were filed against
Thew on May 18, 2010, and we eventually consolidated the
three cases. Thew did not respond to the charges, and the
relator moved for a judgment on the pleadings. In his answer
filed on January 3, 2011, Thew requested that we consider
the same mitigating factors in case No. S-10-380 as we did
in cases Nos. S-09-567 and S-09-820. Thew also admitted the
charges against him, stated that he was not seeking reinstatement, and stated that he was not currently fit to practice law.
The following recitation of facts is taken from the amended
formal charges.
(a) Patrick Doyle
On May 14, 2008, Patrick Doyle hired Thew to represent
him on several criminal and civil matters. Thew and Doyle
executed a written fee agreement which provided that Doyle
would pay Thew $185 per hour for his services, as well as
$40,000 as a “‘non refundable deposit.’” Thew received the
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deposit, but he never provided Doyle with a periodic billing
statement, nor did he respond to relator’s requests for a billing
statement. The record is unclear as to when or why Doyle’s
relationship with Thew ended.
The relator charged Thew with violating §§ 3-501.5 (fees),
3-501.15 (safekeeping property), and 3-508.4 (misconduct).
(b) Kristan Yoder
On or about February 23, 2006, Kristan Yoder hired Thew
to represent him on a breach of settlement agreement. Thew
filed suit on May 9, but then failed to prosecute the case. The
district court issued a progression order on December 10,
2007, stating that the case would be dismissed unless cause
was shown by January 10, 2008. On January 2, Thew filed a
motion to set the case for trial. No trial notice was ever filed,
however, and on December 3, the court issued another progression order directing that the case would be dismissed unless
cause was shown by January 5, 2009. On January 5, Thew
filed a motion to set the case for trial, stating that all discovery had been completed. The defendant in the case objected
and served several interrogatories and requests for production
of documents on Thew. Thew failed to submit responses, and
on July 22, opposing counsel filed a motion to compel on the
discovery requests.
During this time, Thew failed to keep Yoder apprised of the
status of his case. On more than one occasion, Thew falsely
claimed that the case had been set for trial, only to claim later
that the trial had been continued at the request of opposing
counsel. Yoder made repeated requests for a billing statement,
but Thew never provided one. Yoder paid Thew $3,850, but
Thew never accounted for the time spent on Yoder’s case.
Thew’s license to practice law was suspended on September
17, 2009, but Thew failed to notify Yoder of such, and Thew
did not turn over the file so that Yoder could seek other
counsel. Yoder filed a grievance on October 13, and Thew
responded, admitting that he had lied when he told Yoder
the case had been set for trial. The Counsel for Discipline
requested that Thew produce a complete copy of the file, a
complete accounting of the time he had put into the case, and a
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complete accounting of all payments received. The record does
not indicate that Thew ever provided the information.
The relator charged Thew with violating §§ 3-501.3 (diligence), 3-501.4 (communications), 3-501.5 (fees), and 3-508.4
(misconduct), and Neb. Ct. R. of Prof. Cond. § 3-501.16
(declining or terminating representation).
(c) Cory Althouse
Cory Althouse hired Thew in February 2006 to file an eviction notice. Thew filed suit in Lancaster County Court on
February 27. A default judgment for restitution was entered on
March 13, and a monetary judgment for rent and damages in
the amount of $2,705 was entered on April 10. On April 25,
Thew initiated garnishment proceedings to collect the judgment, and he received $1,407.02 from the garnishee’s employer
between May 16, 2006, and March 30, 2007. Thew failed to
provide Althouse with an accounting of all funds received
through the garnishment action, and he failed to remit all of the
funds that Althouse was entitled to receive.
In March 2009, Althouse provided Thew with the name of
the garnishee’s current employer. Thew filed a praecipe and
garnishment affidavit on March 18, 2009. Thew chose to serve
the papers by certified mail, but he failed to follow up with
the garnishment. Thew did not do any more work on the case,
but he did not take steps to terminate the relationship. Thew
failed to notify Althouse when his license was suspended, and
he failed to turn over the case file so that Althouse could retain
other counsel. Althouse filed a grievance against Thew on
November 16. Notice of the grievance was mailed to Thew on
November 17 by certified mail, and Thew signed the receipt
on December 2. Thew was directed to file an appropriate
response to the grievance within 15 working days, which he
failed to do. On January 20, 2010, the Counsel for Discipline
sent a followup letter directing him to file a response, but
Thew failed to respond.
The relator charged Thew with violating §§ 3-501.3 (diligence), 3-501.4 (communications), 3-501.15 (safekeeping
property), 3-501.16 (declining or terminating representation),
and 3-508.4 (misconduct).
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(d) Melissa Anderson
In 2006, Thew represented Melissa Anderson in a personal
injury case after her son was bitten by a dog. Thew filed suit
in Lancaster County Court, and on or about January 12, 2009,
the case was settled with the defendant’s insurance company.
Anderson was appointed conservator for her son so that she
could receive the settlement from the insurance company.
The insurance company mailed Thew a check for over
$18,000, as well as a check payable to Anderson and Thew for
$24,323.94. Anderson was to deposit the insurance settlement
check into a certificate of deposit and file notice thereof with
the county court. Thew failed to notify Anderson that he had
received the settlement check, and he failed to take any other
steps to confirm that the settlement proceeds were deposited
into a certificate of deposit for the son’s benefit. The county
court issued an order to show cause to Anderson for failure
to file a certificate of proof of possession of a certificate of
deposit for her son’s benefit. Anderson was unable to contact
or locate Thew to find out why the insurance company had
not delivered the settlement funds. Anderson appeared at the
show cause hearing on March 16, 2010, and was informed that
Thew’s license had been suspended and that it was her responsibility to locate and deposit the settlement funds.
Upon investigation, Anderson learned that the check for
$24,323.94, made payable to her and Thew, had been sent
to Thew shortly after the settlement had been reached. The
check had never been deposited, although the check for Thew’s
fee had been. The insurance company reissued the settlement
check to Anderson.
The relator charged Thew with violating §§ 3-501.3 (diligence), 3-501.4 (communications), 3-501.15 (safekeeping
property), 3-501.16 (declining or terminating representation),
and 3-508.4 (misconduct).
(e) Marvel Nevels
In 2006, Marvel Nevels contacted Thew about representing
her on an intellectual property case. Her initial consultation
with Thew took place on January 12, 2006, at which time she
paid Thew $50. Thew agreed to prepare and file all documents
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necessary to secure trademark protection for Nevels’ ideas, but
he requested an advance payment first. Nevels gave Thew a
check for $1,900 on August 11, and the check cleared Nevels’
account on September 14.
Thew informed Nevels that it would take between 6 months
and 2 years to complete the registration for her ideas. Nevels
had not heard from Thew by August 2007, and she called his
office to speak with him. Thew stated that he was still working on her case, but that he had not heard from the trademark office.
Nevels waited another year and heard nothing from Thew,
so in August 2008, she made an unannounced visit to Thew’s
office. At that meeting, Thew stated that he still had not heard
from the trademark office regarding her application for trademark protection. Thew did tell Nevels that she could begin
marketing her ideas while she waited to hear from the trademark office. Nevels heard that Thew’s law license had been
suspended, although Thew never notified her of that fact. Since
giving Thew an advance payment, Nevels did not receive any
written correspondence from Thew, she was not notified by
Thew of his suspension, and she had not received her file
from Thew.
The relator charged Thew with violating §§ 3-501.3 (diligence), 3-501.4 (communications), 3-501.15 (safekeeping
property), 3-501.16 (declining or terminating representation),
and 3-508.4 (misconduct).
Given the new charges, the relator recommends disbarment.
III. ANALYSIS
As an initial matter, we note that Thew’s conduct took place
after September 1, 2005, and therefore is governed by the
Nebraska Rules of Professional Conduct.
[1,2] A proceeding to discipline an attorney is a trial de novo
on the record. The basic issues in a disciplinary proceeding
State ex rel. Counsel for Dis. v. Switzer, 275 Neb. 881, 750 N.W.2d 681
(2008).
State ex rel. Counsel for Dis. v. Tarvin, 279 Neb. 399, 777 N.W.2d 841
(2010).
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against a lawyer are whether discipline should be imposed and,
if so, the type of discipline under the circumstances. Neb. Ct.
R. § 3-304 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) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
[3] With respect to the imposition of attorney discipline in
an individual case, we evaluate each attorney discipline case in
light of its particular facts and circumstances.
After the first two cases were heard, the referee had recommended a suspension of 120 days, and probation for 2 years
after Thew is reinstated. However, in light of the most recent
allegations, the recommendation is disbarment.
[4,5] To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, this 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 offender generally, and (6) the offender’s
present or future fitness to continue in the practice of law. The
determination of an appropriate penalty to be imposed on an
attorney in a disciplinary proceeding requires the consideration
of any aggravating or mitigating factors.
Id.
Id.
Id.
State ex rel. Counsel for Dis. v. Wright, 277 Neb. 709, 764 N.W.2d 874
(2009).
Nebraska Advance Sheets
186
281 nebraska reports
[6] Between these three cases, we find by clear and convincing evidence that Thew violated seven different disciplinary
rules. Cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious
sanctions. Thew’s behavior demonstrates a pattern of neglect
and deceit that we find troubling.
While Thew’s responses to his clients were negligent and
lax, he also lied numerous times, and he also created false
documents to hide the fact that he had procrastinated. Thew
admits that he failed to notify his clients of his temporary
suspension and that he failed to provide his clients with their
files so that they could seek other counsel. Although there are
letters in the record from other attorneys attesting to Thew’s
competence, the record reflects that Thew’s problems were
due in part to poor management of his private legal practice.
The record also demonstrates that he did not have sufficient
experience to handle some of his cases and that he did not
seek assistance when he realized he did not have the necessary
information or skills.
In Thew’s answer to the most recent charges, he states that
“he is not seeking reinstatement at this time and does not
contend he is fit to practice law at this time.” The Counsel for
Discipline recommends that Thew be disbarred. We recently
disbarred an attorney for neglecting his clients, failing to properly terminate representation, and failing to cooperate with
the Counsel for Discipline. Ordinarily, cumulative acts of
misconduct and repeated disregard for requests for information
from the Counsel for Discipline will lead to disbarment. Given
Thew’s repeated acts of neglect and deceit, we find that Thew
should be disbarred, effective immediately.
State ex rel. Counsel for Dis. v. Wintroub, 277 Neb. 787, 765 N.W.2d 482
(2009).
State ex rel. Counsel for Dis. v. Samuelson, 280 Neb. 125, 783 N.W.2d 779
(2010).
State ex rel. Counsel for Dis. v. Sutton, 269 Neb. 640, 694 N.W.2d 647
(2005).
Nebraska Advance Sheets
state ex rel. counsel for dis. v. thew
Cite as 281 Neb. 171
187
IV. CONCLUSION
Thew committed a series of ethical breaches over several
years, affecting a number of clients. Thew failed to provide
competent counsel, and made false and misleading statements
to hide the fact that he procrastinated. Thew also failed to
notify his clients of his suspension and failed to safeguard
his clients’ interests. Thew’s misconduct continued during the
investigation by the Counsel for Discipline, and Thew ignored
the letters sent by the Counsel for Discipline. Accordingly,
we find that Thew should be disbarred and hereby order him
disbarred from the practice of law in the State of Nebraska,
effective immediately. Thew shall forthwith comply with all
terms of Neb. Ct. R. § 3-316, and upon failure to do so, he
shall be subject to punishment for contempt of this court.
Accordingly, Thew is directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and Neb. Ct. R. §§ 3-310(P) and 3-323 within 60 days
after an order imposing costs and expenses, if any, is entered
by the court.
Judgment of disbarment.
Heavican, C.J., and Wright and Miller-Lerman, JJ., not
participating.
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