State ex rel. Counsel for Dis. v. Wintroub
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Nebraska Advance Sheets
state ex rel. counsel for dis. v. wintroub
Cite as 281 Neb. 957
957
i
mmediate context of the crime charged. . . .’”’” Because
this evidence is relevant, and is not governed by rule 404(2), I
would find it admissible.
Cassel, Judge, joins in this concurrence.
Id.
State
of
the
Nebraska ex rel. Counsel for Discipline
Nebraska Supreme Court, relator, v.
Edward L. Wintroub, respondent.
of
___ N.W.2d ___
Filed July 22, 2011.
No. S-10-187.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Proof. To sustain a charge in a disciplinary proceeding against an attorney, a charge must be supported by clear and convincing
evidence.
3. Disciplinary Proceedings. Violation of a disciplinary rule concerning the practice of law is a ground for discipline.
4. ____. When no exceptions to the referee’s findings of fact are filed by either
party in an attorney discipline proceeding, the Nebraska Supreme Court may, in
its discretion, consider the referee’s findings final and conclusive.
5. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances.
6. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska Supreme Court considers the attorney’s acts both underlying the events
of the case and throughout the proceeding.
7. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
Original action. Judgment of public reprimand.
John W. Steele, Assistant Counsel for Discipline, for
r
elator.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
for respondent.
Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
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P er Curiam.
NATURE OF CASE
The Counsel for Discipline of the Nebraska Supreme Court
filed formal charges against respondent, Edward L. Wintroub.
In the charges, the Counsel for Discipline alleged that respond
ent violated his oath of office as an attorney licensed to practice law in the State of Nebraska and Neb. Ct. R. of Prof.
Cond. §§ 3-501.8 and 3-508.4, in relation to a personal loan
by a client to respondent. After a hearing, the referee found
that although the loan was repaid, the absence of respondent’s
signature on the note or any collateral for the loan, combined
with inadequate advisement concerning the risks of the loan
and the desirability of consulting with outside counsel, constituted violations of respondent’s oath of office and §§ 3-501.8
and 3-508.4. The Counsel for Discipline and respondent filed a
joint motion for judgment on the pleadings, urging this court to
enter a judgment of public reprimand as recommended by the
referee. This court granted judgment on the pleadings as to the
facts in the formal charges and set the matter of discipline for
oral argument.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on June 28, 1965. At all times relevant to this
case, respondent was engaged in the private practice of law
with an office located in Douglas County, Nebraska.
On or about November 17, 2005, respondent was retained by
Leah Crabb, pursuant to a written fee agreement to represent
Crabb regarding a motor vehicle accident. In 2006, her claims
were settled. At Crabb’s request, some of the resulting funds
were held by respondent in a trust account to be disbursed
at Crabb’s direction. Respondent did not charge Crabb for
this service.
In 2007, respondent was suffering financially and unable
to obtain credit due to a recent bankruptcy. Respondent asked
Crabb for a loan from the trust account in the amount of
$29,000, to be paid back within a year, with 10 percent
Neb. Rev. Stat. § 7-104 (Reissue 2007).
Nebraska Advance Sheets
state ex rel. counsel for dis. v. wintroub
Cite as 281 Neb. 957
959
i
nterest. Respondent prepared and had Crabb sign the following agreement:
I Leah Crabb this date loan to Edward Wintroub for One
Year to April 17, 2008 the sum of $ 29,000.00 at 10%
interest due April 17, 2008. I understand and have been
advised by Mr. Wintroub that [I] have the right to speak
to and have this explained to me by an attorney if [I] wish
and [I] explicitly choose not to do so. [F]urther [I] am not
a client of Mr. Wintroub. Mr. Wintroub may repay monies
early without penalty if needed by myself.
Respondent did not sign the agreement, nor did he sign any
other agreement relating to the loan. Respondent did not give
security for the loan. He did not advise Crabb in writing of the
desirability of seeking independent legal advice or of the risks
of such an unsecured loan. The loan document was signed the
same day that respondent proposed it to Crabb.
At the end of a year, respondent had paid Crabb back,
including interest due. Respondent did not commingle his
moneys with Crabb’s. While the original grievance was that
respondent had not accounted for all the funds borrowed and
later repaid, it was found that respondent did not misappropriate any of the funds loaned to him.
The Counsel for Discipline charged that respondent violated the oath of office and §§ 3-501.8 (conflict of interest)
and 3-508.4(a) (misconduct through violation of rules). The
Counsel for Discipline noted that in 2008, respondent was given
a public reprimand by the Iowa Supreme Court in relation to
a loan given respondent by a client for which respondent later
obtained a discharge in bankruptcy. The Iowa Supreme Court
found that respondent had failed to urge his client to seek outside counsel and had failed to disclose to the client the risks
of the unstructured loan transaction. There was no reciprocal
action taken in Nebraska on that case.
At a hearing before the referee, respondent testified that he
was aware of the Iowa Supreme Court’s view of his previous
dealings with another client and had attempted, this time, to
properly inform his client of the desirability of seeking outside
Iowa S.Ct. Attorney Disc. Bd. v. Wintroub, 745 N.W.2d 469 (Iowa 2008).
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counsel before agreeing to lend him money. He observed that,
in retrospect, it was “a very clumsy document.”
Respondent admitted that Crabb was his client at the time
of the transaction and explained that the declaration in the loan
document to the contrary was meant to clarify that there was no
litigation pending such that she might feel coerced. Respondent
submitted several letters from attorneys attesting to his character and fitness as an attorney and to the fact that he has, in the
past, provided legal services on a pro bono basis.
In his report, the referee concluded that respondent violated
his oath of office and §§ 3-501.8 and 3-508.4(a). The referee,
citing In re Timpone, stated that because respondent failed to
sign a promissory note or give collateral for the loan, the terms
of the transaction were not “fair and reasonable” as required by
§ 3-501.8(a)(1).
The referee also found that respondent failed to fully disclose
the terms of the transaction, as required by § 3-501.8(a)(1).
The referee noted that the Iowa Supreme Court had explained
to respondent that “[f]ull disclosure means the use of active
diligence on the part of the attorney to ‘fully disclose every
relevant fact and circumstance which the client should know to
make an intelligent decision concerning the wisdom of entering
the agreement.’”
The referee determined, further, that respondent failed to
comply with § 3-501.8(a)(2), which requires that the attorney
advise the client, in writing, of the desirability of seeking the
advice of independent legal counsel and requires that the client
be given a reasonable opportunity to seek the advice of independent legal counsel on the transaction.
Finally, the referee found that respondent had violated
§ 3-501.8(a)(3), because respondent failed to communicate to
Crabb the material risks in making a loan without a promissory
note and without obtaining some form of collateral to secure
repayment of the loan.
In re Timpone, 208 Ill. 2d 371, 804 N.E.2d 560, 281 Ill. Dec. 595 (2004).
Iowa S.Ct. Attorney Disc. Bd. v. Wintroub, supra note 2, 745 N.W.2d at
474.
Nebraska Advance Sheets
state ex rel. counsel for dis. v. wintroub
Cite as 281 Neb. 957
961
The referee explained that respondent’s alleged good faith
attempt to comply with the Nebraska Rules of Professional
Conduct was not a defense to the violations, but could be
considered in determining the severity of the sanction. In any
event, the referee did not believe respondent had made a good
faith effort to comply with the rules.
The referee found that the prior disciplinary action by the
Iowa Supreme Court for a similar violation was an aggravating
factor, as well as the fact that respondent has been previously
disciplined by our court. The referee considered as mitigating
factors that respondent cooperated throughout the course of the
disciplinary proceedings and expressed genuine remorse. The
referee also considered it mitigating that the client in this case
suffered no actual harm and that respondent was generally considered a competent attorney who has provided legal services
on a pro bono basis.
The referee recommended that respondent be given a public
reprimand and that he be 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(B). No exceptions have been filed to the report.
ANALYSIS
[1-3] A proceeding to discipline an attorney is a trial de novo
on the record. To sustain a charge in a disciplinary proceeding
against an attorney, a charge must be supported by clear and
convincing evidence. Violation of a disciplinary rule concerning the practice of law is a ground for discipline.
[4] As noted, neither party filed a written exception to the referee’s report, and the facts that make up the basis for the report
were stipulated to prior to the hearing. We granted the parties’
joint motion for judgment on the pleadings as to the referee’s
See State ex rel. Counsel for Dis. v. Wintroub, 267 Neb. 872, 678 N.W.2d
103 (2004).
State ex rel. Counsel for Dis. v. Nich, 279 Neb. 533, 780 N.W.2d 638
(2010).
Id.
Id.
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findings of fact. When no exceptions to the referee’s findings
of fact are filed by either party in an attorney discipline proceeding, the Nebraska Supreme Court may, in its discretion,
consider the referee’s findings final and conclusive. Based
upon the undisputed findings of fact in the referee’s report, we
conclude that respondent has violated his oath of office as an
attorney and the following provisions of the Nebraska Rules of
Professional Conduct: §§ 3-501.8 and 3-508.4(a).
We have stated that the basic issues in a disciplinary proceeding against an attorney are whether discipline should be
imposed and, if so, the type of discipline appropriate under the
circumstances.10 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) 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.
[5-7] We have stated that each attorney discipline case
must be evaluated individually in light of its particular facts
and circumstances.11 For purposes of determining the proper
discipline of an attorney, this court considers the attorney’s
acts both underlying the events of the case and throughout the
proceeding.12 The determination of an appropriate penalty to
be imposed on an attorney in a disciplinary proceeding also
requires the consideration of any aggravating or mitigating
10
11
12
Id.
Id.
Id.
Id.
Nebraska Advance Sheets
state ex rel. counsel for dis. v. wintroub
Cite as 281 Neb. 957
963
factors.13 We have considered prior reprimands as aggravators.14 Further, cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more
serious sanctions.15
The evidence in the present case establishes, among other
facts, that respondent engaged in a business transaction with a
client without fully complying with the requirements set forth
in § 3-501.8. As the referee noted, the loan transaction was
not secured by a promissory note issued by respondent and
no collateral was provided for the loan. This made the loan
risky for Crabb and was not a fair and reasonable transaction.
Respondent also failed to advise Crabb in writing of the value
of seeking outside legal counsel as required in § 3-501.8(a)(2)
and did not obtain the consent of his client pursuant to
§ 3-501.8(a)(3).
As to mitigating factors, respondent cooperated with the
Counsel for Discipline during the disciplinary proceedings and
was remorseful for his actions. Further, it is significant that
Crabb did not suffer an economic injury due to respondent’s
conduct, because she was reimbursed in full with interest prior
to the filing of these proceedings. Numerous letters of support
attested to respondent’s good character. There was evidence
that respondent engaged in pro bono work.
However, there are aggravating factors in this case.
Respondent has been disciplined for similar conduct by the
Iowa Supreme Court and has previously been disciplined by
this court. This indicates cumulative acts of misconduct and
suggests a more severe sanction.
We have considered the record, the findings which have
been established by clear and convincing evidence, and the
applicable law. Based upon our consideration of the record in
this case, we adopt the recommendation of the referee and find
that respondent should be and hereby is publicly reprimanded
for his misconduct.
13
14
15
Id.
Id.
Id.
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However, we take this opportunity to note that we are cognizant that respondent has received prior discipline by this court
and the Iowa Supreme Court. Given this history, we caution
that more severe sanctions will be considered in connection
with any further disciplinary actions.
CONCLUSION
It is the judgment of this court that respondent should be and
hereby is publicly reprimanded. Respondent is directed to pay
costs and expenses in accordance with §§ 7-114 and 7-115 of
the Nebraska Revised Statutes and §§ 3-310(P) and 3-323(B)
of the disciplinary rules within 60 days after an order imposing
costs and expenses, if any, is entered by the court.
Judgment of public reprimand.
Heavican, C.J., not participating.
In
re I nterest of Jamyia
under
18
M.,
a child
years of age.
State of Nebraska, appellee and cross-appellee, v.
Jamison M., appellee and cross-appellant,
and Shinai S., appellant.
___ N.W.2d ___
Filed July 22, 2011.
No. S-10-208.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the court below.
3. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, an appellate court must determine whether it has jurisdiction.
5. Final Orders: Appeal and Error. There are three types of final orders that may
be reviewed on appeal: (1) an order which affects a substantial right and which
determines the action and prevents a judgment, (2) an order affecting a substantial
right made during a special proceeding, and (3) an order affecting a substantial
right made upon summary application in an action after a judgment is rendered.
6. Juvenile Courts: Appeal and Error. A proceeding before a juvenile court is a
special proceeding for appellate purposes.
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