State ex rel. Counsel for Dis. v. Herzog
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property, which we assume to be community property, regardless of whether Nebraska or Arizona law is applied to the
Nebraska enforcement proceedings. Accordingly, denial of
Laura’s motions to intervene did not deprive her of a substantial right32 and was therefore not prejudicial error.
V. CONCLUSION
For the reasons discussed, we affirm the judgments of the
district court in each of the consolidated appeals.
Affirmed.
Wright, J., not participating.
32
See Emery v. Mangiameli, 218 Neb. 740, 359 N.W.2d 83 (1984).
State
Nebraska ex rel. Counsel for Discipline
Nebraska Supreme Court, relator, v.
Julianne Dunn Herzog, respondent.
of
of the
___ N.W.2d ___
Filed July 8, 2011. No. S-10-018.
1. Disciplinary Proceedings: Appeal and Error. 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; provided, however, that where the credible evidence is in conflict on a material issue of fact,
the Nebraska Supreme Court considers and may give weight to the fact that the
referee heard and observed the witnesses and accepted one version of the facts
rather than another.
2. Disciplinary Proceedings: Proof. Disciplinary charges against an attorney must
be established by clear and convincing evidence.
3. Disciplinary Proceedings. Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances.
4. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska Supreme Court will consider the attorney’s acts both underlying the
alleged misconduct and throughout the proceeding.
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.
Original action. Judgment of suspension.
Nebraska Advance Sheets
state ex rel. counsel for dis. v. herzog
Cite as 281 Neb. 816
817
Jeffry D. Patterson, Special Counsel for Discipline, for
r
elator.
Julianne Dunn Herzog, pro se.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
P er Curiam.
This disciplinary action arose out of guardianship and conservatorship proceedings involving Rosemary Dunn, the mother
of the respondent, Julianne Dunn Herzog. For Herzog’s conduct in those proceedings, the Counsel for Discipline charged
her with violating four sections of the Nebraska Rules of
Professional Conduct. After a hearing, the referee determined
that Herzog had violated Neb. Ct. R. of Prof. Cond. §§ 3-503.2,
3-504.4, and 3-508.4. The referee recommends that Herzog be
disbarred. We find clear and convincing evidence that Herzog
violated the rules of professional conduct, and we therefore
suspend Herzog from the practice of law for a period of
2 years.
background
This disciplinary action arose out of a longstanding dispute
among Herzog and her siblings over guardianship and conservatorship proceedings for their elderly and incapacitated mother,
Rosemary. Herzog has disagreed with her siblings about virtually everything related to Rosemary’s guardianship and conservatorship, and this is Herzog’s third disciplinary action arising
out of those proceedings. Before Herzog’s first disciplinary
action, the county court determined that it was in Rosemary’s
best interests to appoint Daniel Dunn, Herzog’s brother, as
Rosemary’s guardian, and for Rosemary to live at an assisted
living facility in Minneapolis, Minnesota. Daniel was authorized to control visitation and telephone calls in Rosemary’s
best interests and was to have sole contact with Rosemary’s
living facility employees. Herzog filed various motions in the
guardianship case, claiming to represent Rosemary’s interests when in fact she previously had been granted leave to
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w
ithdraw. For those actions, a complaint was filed against
Herzog with the Counsel for Discipline, and Herzog stipulated
to a private reprimand.
In Herzog’s second disciplinary action, brought in 2008, the
evidence showed that Herzog filed two notices of appeal and a
petition for further review on behalf of Rosemary, who was not
Herzog’s client at the time of the filings. On appeal, we determined that Herzog’s actions violated §§ 3-503.2 and 3-508.4(a)
and (d). We were most concerned with the fact that Herzog’s
violations were her second disciplinary action arising out of
Rosemary’s guardianship and conservatorship proceedings. For
her continued unethical behavior, we suspended Herzog from
the practice of law for a period of 3 months, following which
Herzog was placed on probation for a period of 1 year.
Before our ruling in Herzog’s second disciplinary action, on
May 22, 2008, we issued a memorandum opinion and judgment
on appeal in case No. S-07-781, which was one of Herzog’s
appeals from a judgment of the county court for Douglas
County. In that appeal, Herzog was the interested party and we
noted that she did not represent Rosemary’s interests. Herzog
made numerous assignments of error, which generally related
to Rosemary’s guardianship and conservatorship proceedings.
We found Herzog’s arguments to be without merit, with one
exception: We determined that the county court erred when it
denied, without an evidentiary hearing, Herzog’s application
to find Rosemary’s guardian in contempt or, in the alternative,
show cause for removal. Herzog’s application had referenced
bruising on Rosemary’s arms as evidence of possible abuse,
indicated that Rosemary had lost weight and had problems with
her dental bridge, and alleged that Herzog had been unable to
obtain satisfactory information about Rosemary’s health from
the guardian. Herzog also indicated that there were continued
visitation disputes with the guardian. We remanded the cause
to the county court, and the current disciplinary charges against
Herzog arose out of those proceedings.
See State ex rel. Counsel for Dis. v. Herzog, 277 Neb. 436, 762 N.W.2d
608 (2009).
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state ex rel. counsel for dis. v. herzog
Cite as 281 Neb. 816
819
Upon remand, the county court set a hearing date for July
21, 2008. Before that hearing, Rosemary fell and suffered
a hip injury. The guardian informed Herzog that Rosemary
might need to be transferred to another assisted living facility
after treatment and rehabilitation. On July 18, upon receiving that information, Herzog withdrew her application to find
Rosemary’s guardian in contempt or, in the alternative, show
cause for removal. Though Herzog’s application had been
withdrawn, the court held the July 21 hearing with respect to
the visitation dispute. The court granted Rosemary’s guardian
absolute discretion with regard to when and where Herzog
could exercise her visitation rights with Rosemary. The hearing
was continued until November 14.
At the hearing, Herzog’s husband revealed on crosse
xamination that Herzog had registered Douglas County Court
documents in Minnesota, where Rosemary resides. The county
court, examining copies of those documents, noted that the
documents had been filed 3 days before the July 21, 2008,
hearing held in Douglas County. The court said it was concerned because the July 21 hearing had addressed the same
issues as did the Minnesota filing, but Herzog had not disclosed to the court that she had filed in Minnesota. The court
questioned Herzog about her intent in filing the documents in
Minnesota and not disclosing such filings at the July 21 hearing. The record reflects that Herzog argued with the court during this inquiry. Herzog stated that she did not know on July
21 that those documents had been filed. Upon further inquiry,
Herzog stated:
Judge, I’m not going to sit here and have you accuse me
and then not allow me to answer. I refuse to do that. That’s
abuse. If you’d like to hear my answer, I will be happy to
give it to you, but I will not sit here and be abused first
by my brother’s lawyer and now by you. If you’d like my
answer, I’ll give it to you. If you’d like a brief recess so
we can all cool down, I’ll —
....
. . . — do that too —
....
. . . — but I will not be abused.
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The court then instructed Herzog to lower her voice, to which
Herzog responded “Well, I will not be abused.” After further
discussion, Herzog stated that the court was “repeating what
[opposing counsel] has put in his pleadings” and then asked
the court whether it was asking Herzog “[opposing counsel’s]
questions or the Court’s questions.”
Eventually, Herzog explained that upon being informed that
Rosemary possibly would be transferred to another assisted
care facility in Minnesota, she withdrew her request for a hearing on her application in Douglas County and sent the Douglas
County Court documents to her lawyer in Minnesota. Herzog
claimed that though the documents were filed in Minnesota
on July 18, 2008, she was not aware of that fact until July 25,
when she received notification of the filing. Herzog stated that,
on August 29, she filed in the Douglas County Court a motion
to transfer to Minnesota, because all of the evidence was in
Minnesota and because she sought to enforce a visitation order
which Rosemary’s guardian was allegedly violating. Later,
while the court was making a further inquiry, Herzog stated,
“Would you like to file a complaint with the Bar Association?
Feel free.” Herzog also stated, “I don’t know what your concern is, Judge, but it, obviously, isn’t my mother. Now, I have
to take a brief recess.”
The guardian, Daniel, later filed a grievance with the Counsel
for Discipline. The Counsel for Discipline charged Herzog with
violating the Nebraska Rules of Professional Conduct when
she (1) failed to inform the Douglas County Court of the filing of court documents from the underlying guardianship case
in Minnesota; (2) caused documents to be filed in Minnesota
with the intent to embarrass, delay, or burden a third party or
that obviously would serve merely to harass or maliciously
injure another; and (3) showed disrespect to the court when
she engaged in a shouting match during the November 14,
2008, hearing in the county court. The Counsel for Discipline
alleged that Herzog’s actions violated §§ 3-503.2 (expediting
litigation), 3-504.4 (respect for rights of third persons), and
3-508.4 (misconduct), as well as Neb. Ct. R. of Prof. Cond.
§ 3-503.3 (candor toward tribunal). After a hearing, the referee
determined that Herzog had violated §§ 3-503.2, 3-504.4, and
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state ex rel. counsel for dis. v. herzog
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3-508.4, but had not violated § 3-503.3. The referee recommends disbarment.
Assignments of error
Herzog filed the following summarized exceptions to the
referee’s report, stating that the referee had (1) considered evidence in the proceeding that involved conduct not charged in
the amended formal charges and which was resolved in prior
disciplinary proceedings, (2) incorrectly concluded that clear
and convincing evidence proved Herzog had filed documents
in Minnesota solely for the purpose of harassing or maliciously injuring another, (3) incorrectly concluded that clear
and convincing evidence proved Herzog had filed documents
in Minnesota with the intent to embarrass or burden a third
person, and (4) incorrectly concluded that clear and convincing
evidence proved that Herzog’s conversation with the county
court rose to the level of misconduct prejudicial to the administration of justice.
Standard of Review
[1] A proceeding to discipline an attorney is a trial de novo
on the record, in which we reach a conclusion independent of
the findings of the referee; provided, however, that where the
credible evidence is in conflict on a material issue of fact, we
consider and may give weight to the fact that the referee heard
and observed the witnesses and accepted one version of the
facts rather than another.
[2] Disciplinary charges against an attorney must be established by clear and convincing evidence.
Analysis
As a preliminary matter, though Herzog argues that the
referee erred in considering evidence in the proceeding that
involved conduct not charged in the amended formal charges
and which was resolved in her prior disciplinary action, her
argument is without merit due to our standard of review. We
review disciplinary proceedings de novo on the record, so
State ex rel. Counsel for Dis. v. Herzog, supra note 1.
Id.
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whatever the referee might have improperly considered is
immaterial to our review. We therefore only consider which, if
any, Nebraska Rules of Professional Conduct were violated and
the appropriate sanction for any such violation.
Expediting Litigation and R espect
for R ights of Third Parties
The Counsel for Discipline charged Herzog with violating §§ 3-503.2 and 3-504.4 for filing court documents in
Minnesota. Section 3-503.2 states:
In the lawyer’s representation of a client, a lawyer
shall not file a suit, assert a position, conduct a defense,
delay litigation or take other action on behalf of the client when the lawyer knows or when it is obvious that
such action would serve merely to harass or maliciously
injure another.
Section 3-504.4(a) states:
In representing a client, a lawyer shall not use means
that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such
a person.
The documents Herzog filed in Minnesota are an odd assortment, consisting of 44 total pages. They include, among other
things, a journal entry from the Douglas County Court finding that Daniel was meeting his obligation to provide permanent guardianship for Rosemary; an order from the Douglas
County Court ordering that Rosemary’s farm be sold to provide
her conservatorship estate with liquidity; Herzog’s application in Douglas County to find Daniel in contempt or, in the
alternative, show cause for removal; correspondence between
Herzog and Daniel regarding Herzog’s visitation in regard to
Rosemary; correspondence between Herzog and Daniel regarding, among other things, bruising on Rosemary’s arms; an
order from the Douglas County Court approving the appointment of a conservator, awarding the conservator attorney fees,
awarding service fees to the guardian ad litem, dismissing
See id.
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state ex rel. counsel for dis. v. herzog
Cite as 281 Neb. 816
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Herzog’s application to find Daniel in contempt or in the alternative show cause for removal, finding that Daniel continued
to fulfill his obligation as guardian, granting monthly visitation
to Herzog, and withdrawing an earlier mediation requirement;
Herzog’s notice of appeal from that order; and our mandate in
regard to that order.
Herzog contends that she caused the documents to be filed
in Minnesota to enforce her right to visitation in Minnesota
and, in response to our suggestion in the previous memorandum order and judgment on appeal, that a “visitor” be
appointed as an intermediary between Herzog and her family
to facilitate Herzog’s visits with Rosemary. But as the referee
noted, most of the documents Herzog filed have nothing to do
with visitation. The documents that do mention visitation recite
visits that were scheduled to take place before the filing date of
July 18, 2008. In fact, only one document mentioned prospective visits, for July 19 and 20 and August 16 and 17. And none
of the documents Herzog caused to be filed requested that the
Minnesota court enforce Herzog’s right to visitation. Herzog’s
claim that she filed in Minnesota to enforce her right to visitation is not credible.
Herzog’s other explanation—that she filed the documents
in response to our suggestion that a visitor be appointed—is
also not credible. None of the documents that Herzog filed
requested that a visitor be appointed. And, as the referee noted,
none of the documents reference our suggestion, and Herzog
did not file a copy of our decision. Herzog claims that she
intended to file our opinion in Minnesota. Herzog testified
that she sent documents to her Minnesota counsel, who chose
which documents to actually file. However, neither Herzog nor
her counsel provided evidence that Herzog intended to file our
prior opinion. And though Herzog’s attorney testified that he
removed some of the documents from those Herzog provided,
neither can remember which documents were removed.
Herzog’s explanations for filing in Minnesota are not credible, especially in light of the fact that many of the documents
Herzog filed related to Herzog’s prior application to find
Daniel in contempt or, in the alternative, show cause for his
removal as Rosemary’s guardian. Herzog withdrew that exact
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application from the Douglas County Court prior to July 21,
2008. Herzog explained that she did so because the information on which the application relied was “stale.” And though
she claimed that her application was “stale,” she still caused
it to be filed in Minnesota at the same time she withdrew the
application in Douglas County Court. Furthermore, Herzog’s
application, as the referee noted, is not an order to be enforced.
It did not illustrate that Herzog was entitled to visitation, nor
did it request the appointment of a visitor. And the title page
of Herzog’s application contained gratuitous photographs of
bruising on Rosemary’s arms. Though the photographs conceivably could have been entered into evidence at the hearing
if supported by sufficient foundation, it was inappropriate for
the front page of a court filing. For the foregoing reasons,
we determine that there was no legitimate legal purpose for
Herzog’s Minnesota filing.
As the referee noted, in this disciplinary case, Herzog abused
the subpoena process when she subpoenaed Daniel on a week’s
notice and when she subpoenaed Rosemary, knowing that
Rosemary was incapacitated and that Herzog was prevented by
court order from entering Rosemary’s care facility. Herzog’s
abuse of the subpoena process, unaccounted-for filing of a
“stale” application which contained gratuitous photographs of
bruising on Rosemary, inability to articulate a credible legitimate legal purpose for her filing, and the animus between
Herzog and Daniel clearly indicate that Herzog’s intent in filing the documents in Minnesota could be for no other reason
than to harass and embarrass, within the meaning of §§ 3-503.2
and 3-504.4, respectively. We therefore find clear and convincing evidence that Herzog violated §§ 3-503.2 and 3-504.4.
Misconduct
The Counsel for Discipline charged Herzog with violating
§ 3-508.4 for her confrontation with the Douglas County Court.
Section 3-508.4 states:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional
Conduct knowingly assist or induce another to do so or do
so through the acts of another;
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state ex rel. counsel for dis. v. herzog
Cite as 281 Neb. 816
825
....
(d) engage in conduct that is prejudicial to the administration of justice.
We first note that Herzog violated § 3-508.4(a) by virtue of
violating §§ 3-503.2 and 3-504.4 as discussed above. We also
find that her confrontation with the Douglas County Court was
prejudicial to the administration of justice under § 3-508.4(d).
The record reflects that Herzog was generally disrespectful to the court, raised her voice, accused the court of “abusing” her, accused the court of not caring about Rosemary, and
accused the court of parroting opposing counsel’s pleadings.
Though the court interrupted Herzog several times, the majority of those interruptions were to get a satisfactory answer
from Herzog as to why she filed Douglas County Court documents in Minnesota and then attended a hearing in the Douglas
County Court without disclosing her actions. Herzog’s brash
conduct, on the whole, indicates a significant lack of respect
for the court. As such, we find that Herzog’s actions were
prejudicial to the administration of justice within the meaning
of § 3-508.4(d).
Appropriate Discipline
[3-5] Neb. Ct. R. § 3-304 states 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[.]
....
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
Each attorney discipline case must be evaluated individually
in light of its particular facts and circumstances. This court
will consider the attorney’s acts both underlying the alleged
State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 702
(2009).
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misconduct and throughout the proceeding. The determination
of an appropriate penalty to be imposed also requires the consideration of any aggravating or mitigating factors.
We first consider any mitigating factors. As the referee noted,
Herzog’s confrontation with the court did not involve obscenity, and to her credit, Herzog requested on multiple occasions
that the court grant a recess, even suggesting that such recess
would enable everyone to “cool down.” And Herzog argues that
she was under a great deal of stress at the time of the hearing,
claiming emotional, health, and financial problems. We also
observe that Herzog’s misconduct has also occurred solely in
the context of emotionally charged and highly personal matters, which does not excuse her conduct, but does suggest that
such misconduct is less likely to occur in the representation of
other clients.
We next consider aggravating factors. This proceeding is
Herzog’s third disciplinary action regarding guardianship
and conservatorship proceedings involving Rosemary. In her
first disciplinary action, Herzog stipulated that she violated
DR 7-102(A)(1), currently codified at § 3-503.2. In Herzog’s
second disciplinary action, we determined that Herzog had
violated §§ 3-503.2 and 3-508.4(a) and (d), and we suspended
Herzog from the practice of law for a period of 3 months. In
the current action, we find that Herzog violated §§ 3-503.2,
3-504.4, and 3-508.4(a) and (d). Herzog not only has violated
our rules on multiple occasions, but she has violated the same
rules—§§ 3-503.2 and 3-508.4(a) and (d)—on multiple occasions. And as we noted in Herzog’s second disciplinary action,
“what we are most concerned with is the fact that these formal
charges represent Herzog’s second disciplinary action regarding
these guardianship proceedings. Even after her previous private
reprimand, Herzog continued to engage in unethical behavior
in the guardianship proceedings.” We note that our opinion
in Herzog’s second disciplinary action was decided after her
Id.
Id.
State ex rel. Counsel for Discipline v. Herzog, supra note 1, 277 Neb. at
445, 762 N.W.2d at 615.
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Cite as 281 Neb. 816
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actions in the present matter. Nonetheless, repeated acts of
misconduct require a significant sanction. Herzog’s repeated
and obsessive acts of misconduct in Rosemary’s guardianship
and conservatorship proceedings do not warrant leniency. But,
in our opinion, they are not so egregious as to warrant disbarment. We therefore conclude that Herzog should be suspended
from the practice of law for a period of 2 years.
Conclusion
We find by clear and convincing evidence that Herzog violated §§ 3-503.2, 3-504.4, and 3-508.4(a) and (d). Therefore,
it is the judgment of this court that Herzog should be and
hereby is suspended from the practice of law for 2 years, effective immediately.
Herzog shall comply with Neb. Ct. R. § 3-316 and, upon
failure to do so, shall be subject to punishment for contempt
of this court. At the end of the 2-year suspension, Herzog may
be reinstated to the practice of law, provided that she has demonstrated her compliance with § 3-316 and further provided
that the Counsel for Discipline has not notified this court that
Herzog has violated any disciplinary rule during her suspension. Herzog is directed to pay costs and expenses in accord
ance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007)
and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of suspension.
Wright, J., not participating.
See State ex rel. Counsel for Dis. v. Beach, 272 Neb. 337, 722 N.W.2d 30
(2006).
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