State ex rel. Counsel for Dis. v. Ellis

Randal’s parental rights to Ryder. We also conclude that Randal
is an unfit parent and that terminating Randal’s parental rights
to Ryder was in Ryder’s best interests. We affirm the judgment
of the juvenile court.
A ffirmed.
StAte of NebrASkA ex rel . C ouNSel for diSCipliNe of
the NebrASkA Supreme C ourt, relAtor , v.
JohN p. elliS, reSpoNdeNt.
808 N.W.2d 634
Filed February 24, 2012. 	No. S-10-986.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Appeal and Error. In an attorney discipline case,
the Nebraska Supreme Court reaches its conclusion independent of the findings
of the referee. However, 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.
3. Disciplinary Proceedings: Proof. Disciplinary charges against an attorney must
be established by clear and convincing evidence.
4. Disciplinary Proceedings. In attorney discipline cases, the basic issues are
whether discipline should be imposed and, if so, the type of discipline under the
circumstances.
5. ____. The Nebraska Supreme Court evaluates each attorney discipline case in
light of its particular facts and circumstances and considers the attorney’s acts
both underlying the events of the case and throughout the proceeding.
6. ____. In determining the appropriate sanction in an attorney disciplinary proceed-
ing, the Nebraska Supreme Court considers the discipline imposed in similar
circumstances.
7. ____. In evaluating attorney discipline cases, the Nebraska Supreme Court con-
siders aggravating and mitigating circumstances.
8. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
Original action. Judgment of disbarment.
Kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
James C. Morrow, of Morrow, Willnauer, Klosterman &
Church, L.L.C., and, on brief, Kurt D. Maahs for respondent.
STATe ex ReL. COuNSeL FOR DIS. v. eLLIS 	329
Cite as 283 Neb. 329
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

heAviCAN, C.J., Wright, C oNNolly, StephAN, mCC ormACk ,
and miller-lermAN, JJ.
per C uriAm.
NATuRe OF CASe
The Counsel for Discipline filed formal charges against
John P. ellis, alleging he violated his oath of office as an attor-
ney, Neb. Rev. Stat. 7-104 (Reissue 2007), and several of the
Nebraska Rules of Professional Conduct. ellis filed an answer
admitting certain factual allegations but denying he violated
the rules of professional conduct. This court appointed a ref-
eree. After holding an evidentiary hearing, the referee deter-
mined ellis had violated Neb. Ct. R. of Prof. Cond. §§ 3-501.3
(diligence); 3-501.4(a)(1) through (4) and (b) (communica-
tions); 3-501.15(d) and (e) (safekeeping property); 3-501.16(d)
(declining or terminating representation); and 3-508.4(a), (c),
and (d) (misconduct); and his oath of office as an attorney.
Based on the seriousness of the offenses and given ellis’ simi-
lar past behavior for which he had been previously disciplined,
the referee recommended disbarment. ellis filed exceptions
to the referee’s report. upon our independent review of the
record, we conclude that the violations occurred and that the
proper sanction is disbarment.
FACTS
ellis was admitted to the practice of law in Nebraska in
1982. In 2003, he entered a conditional admission to charges
filed by the Counsel for Discipline. Those charges alleged that
due to ellis’ neglect, a client’s case was dismissed. ellis subse-
quently misled the client regarding the status of that case and
gave false information to the Counsel for Discipline’s office
during the following investigation. We accepted ellis’ condi-
tional admission and suspended him for 1 year. State ex rel.
Special Counsel for Dis. v. Ellis, 265 Neb. 788, 659 N.W.2d
829 (2003). ellis was reinstated in 2004.
At all relevant times, ellis was engaged in the private prac-
tice of law in Omaha under the jurisdiction of the Committee on
Inquiry of the Second Disciplinary District, which determined
reasonable grounds existed to discipline ellis. Accordingly,
330 	283 NeBRASKA RePORTS

formal charges were filed. Given ellis’ answer, we appointed
a referee.
With respect to the current case, the referee found facts
substantially as described below. Following our de novo review
of the record, we determine there is clear and convincing evi-
dence in the record to support these facts. In 2006, Stephen and
Cindy Fuller met with ellis to talk about collecting damages as
a result of personal injuries Stephen Fuller (Fuller) suffered in
2004. ellis was hired on a one-third contingency fee contract
and presented a claim to an insurance company, which denied
liability. Before proceeding with the case, ellis required a
$1,000 deposit. Fuller made the deposit, and in May 2007, the
funds were placed in ellis’ trust account. In June 2007, ellis
filed suit in the district court for Douglas County, and discov-
ery began.
Around March 10, 2008, the district court sent a notice to
ellis stating that Fuller’s suit would be dismissed in 30 days
for lack of prosecution. ellis did not send Fuller a copy of
this notice of impending dismissal. The statute of limitations
ran on Fuller’s claim in February 2008. Fuller’s case was dis-
missed with prejudice on April 10, 2008. ellis claimed he told
the Fullers about the notice of impending dismissal on March
24, 2008, when he met with them to discuss their upcoming
depositions. The referee did not find this testimony credible.
ellis also claimed he sent a letter to Fuller on March 28 about
the impending dismissal. The referee found that ellis falsely
claimed this letter had been sent and, on the contrary, that the
evidence showed the letter “was created by [ellis] to mislead
and deceive [the] Counsel for Discipline in the investigation
of this matter.” These findings by the referee are supported by
the record.
The March 28, 2008, letter was not sent by certified mail.
It included the statement, “If I do not hear back from you,
I will assume you agree [that your case would not likely be
successful] and understand that the matter will be dismissed.”
The file copy of the March 28 letter resembled “a copy of
a copy.” The letter did not discuss reinstatement of the case
or mention the expired statute of limitations. The referee did
not find it credible that the March 28 letter would include so
STATe ex ReL. COuNSeL FOR DIS. v. eLLIS 	331
Cite as 283 Neb. 329

little about the consequences of dismissal and the difficulty of
reinstatement.
ellis’ firm uses “Worldox,” a document management system
which assigns numbers sequentially to documents. The March
28, 2008, letter was allegedly numbered 60119, while a March
26 letter was numbered 60201. Two copies of the letter in two
exhibits in the case bore no document number.
In connection with the investigation of Fuller’s grievance,
the Assistant Counsel for Discipline met ellis at ellis’ office
on May 3, 2010, and asked for the March 28, 2008, letter. The
letter was not found in the computer system. A search for the
document numbered 60119 retrieved a letter dated March 20,
2008, to a different client. A hard copy of the March 20 letter
could not be found. ellis claimed he gave the March 20 letter
directly to the client; the referee determined that it was more
likely the letter was used to recreate an obsolete letterhead.
Fuller stated he never received the March 28, 2008, letter
and was never told of the notice of impending dismissal or
the actual dismissal of his case. unaware of the April 2008
dismissal, the Fullers continued to contact ellis about the case
through the rest of 2008 and 2009. These contacts support
Fuller’s claim he did not know his case had been dismissed.
Although, as the referee noted, Fuller did not have a good
memory for dates, he could recall facts in sequence and was
able to refresh his memory from several exhibits. The referee
found that Fuller was credible and that the March 28 letter
was fabricated.
On July 3, 2008, ellis sent Fuller a letter about locating a
possible witness. In 2009, ellis met Fuller and the witness,
despite ellis’ apparent knowledge that the case probably could
not be reinstated 11⁄2 years after it had been dismissed. This
witness did not add to Fuller’s case. Fuller called ellis multiple
times from October through December 2009 and left messages
for ellis.
On January 8, 2010, Fuller looked at his case file at the
Douglas County District Court and learned his case had been
dismissed in 2008. Fuller attempted to contact ellis, but his
calls were not returned. Fuller filed a grievance on January
12, 2010.
332 	283 NeBRASKA RePORTS

The remainder of Fuller’s $1,000 payment was not returned
until May 2010, over 2 years after the case was dismissed and
only after the grievance had been filed. ellis’ employer ordered
the refund. However, the referee determined that it was unclear
that the failure to refund the money was due to an attempt
to mislead Fuller or due to a lack of review processes at the
firm for the rare case of an advance payment on a contingency
fee contract.
The referee determined that ellis did not tell Fuller his case
was subject to dismissal and, once dismissed, could be rein-
stated only at the district court’s discretion. The referee also
determined that ellis failed to advise Fuller that if the case
was not reinstated, it could not be refiled, because the statute
of limitations had run. The referee determined that ellis did
not explain the matter to Fuller such that Fuller could make
informed decisions regarding dismissal or take action to avoid
dismissal or reinstate the case. The referee determined that
although ellis had a duty to properly account for client funds,
the refund was not made until well after the case was dismissed.
The referee described ellis’ conduct as involving “dishonesty,
fraud, deceit and misrepresentation” as well as “prejudic[e] to
the administration of justice.” upon our de novo review, we
find these determinations are supported by the record.
The referee determined ellis violated Neb. Ct. R. of Prof.
Cond. §§ 3-501.3 (diligence); 3-501.4(a)(1) through (4) and
(b) (communications); 3-501.15(d) and (e) (safekeeping prop-
erty); 3-501.16(d) (declining or terminating representation);
and 3-508.4(a), (c), and (d) (misconduct); and his oath of office
as an attorney. The referee recommended disbarment. ellis
filed exceptions to the referee’s report.
ASSIGNMeNTS OF eRROR
ellis assigns, renumbered, restated, and consolidated, that
the referee erred when he (1) found ellis did not tell the Fullers
about the impending dismissal notice or dismissal order, tell
them of the probability that the lawsuit could not be reinstated
once it was dismissed, or explain the matter to the extent rea-
sonably necessary to allow Fuller to make an informed deci-
sion regarding dismissal; (2) found ellis created the March 28,
STATe ex ReL. COuNSeL FOR DIS. v. eLLIS 	333
Cite as 283 Neb. 329

2008, letter to mislead and deceive the Counsel for Discipline;
(3) found ellis did not take diligent action to avoid dis-
missal or reinstate the case or communicate with Fuller to get
informed consent; (4) found ellis violated the Nebraska Rules
of Professional Conduct and his oath of office as an attorney;
(5) allowed or considered evidence relating to ellis’ prior con-
duct and disciplinary action; and (6) determined disbarment
was an appropriate sanction.
STANDARDS OF ReVIeW
[1,2] A proceeding to discipline an attorney is a trial de
novo on the record. State ex rel. Counsel for Dis. v. Thew, 281
Neb. 171, 794 N.W.2d 412 (2011). We reach our conclusion
independent of the findings of the referee. State ex rel. Counsel
for Dis. v. Carter, 282 Neb. 596, 808 N.W.2d 342 (2011).
However, where the credible evidence is in conflict on a mate-
rial 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. Id.
ANALYSIS
[3-5] Violation of a disciplinary rule concerning the prac-
tice of law is a ground for discipline, State ex rel. Counsel
for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 702 (2009), and
disciplinary charges against an attorney must be established by
clear and convincing evidence. State ex rel. Counsel for Dis.
v. Herzog, 281 Neb. 816, 805 N.W.2d 632 (2011). In attorney
discipline cases, the basic issues are whether discipline should
be imposed and, if so, the type of discipline under the circum-
stances. Thew, supra. We evaluate each attorney discipline case
in light of its particular facts and circumstances, id., and con-
sider the attorney’s acts both underlying the events of the case
and throughout the proceeding. State ex rel. Counsel for Dis. v.
Samuelson, 280 Neb. 125, 783 N.W.2d 779 (2010).
The goal of attorney disciplinary proceedings is not as much
punishment as determination of whether it is in the public
interest to allow an attorney to keep practicing law. See Orr,
supra. We consider six factors in determining whether and to
what extent discipline should be imposed: (1) the nature of the
334 	283 NeBRASKA RePORTS

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. Thew, supra.
The referee determined and we agree that ellis violated the
following provisions of the Nebraska Rules of Professional
Conduct:
§ 3-501.3. Diligence.
A 	lawyer 	shall 	act 	with 	reasonable 	diligence 	and
promptness in representing a client.
. . . .
§ 3-501.4. Communications.
(a) A lawyer shall:
(1) promptly inform the client of any decision or cir-
cumstance with respect to which the client’s informed
consent . . . is required by these Rules;
(2) reasonably consult with the client about the means
by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status
of the matter;
(4) [and] promptly comply with reasonable requests for
information[.]
. . . .
(b) A lawyer shall explain a matter to the extent rea-
sonably necessary to permit the client to make informed
decisions regarding the representation.
. . . .
§ 3-501.15. Safekeeping property.
. . . .
(d) upon receiving funds or other property in which
a client or third person has an interest, a lawyer shall
promptly notify the client or third person. except as
stated in this rule or otherwise permitted by law or by
agreement with the client, a lawyer shall promptly deliver
to the client or third person any funds or other property
that the client or third person is entitled to receive and,
upon request by the client or third person, shall promptly
render a full accounting regarding such property.
STATe ex ReL. COuNSeL FOR DIS. v. eLLIS 	335
Cite as 283 Neb. 329

(e) When in the course of representation a lawyer is
in possession of property in which two or more persons
(one of whom may be the lawyer) claim interests, the
property shall be kept separate by the lawyer until the
dispute is resolved. The lawyer shall promptly distribute
all portions of the property as to which the interests are
not in dispute.
. . . .
§ 3-501.16. Declining or terminating representation.
. . . .
(d) upon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to protect
a client’s interests, such as giving reasonable notice to
the client, allowing time for employment of other coun-
sel, surrendering papers and property to which the client
is entitled and refunding any advance payment of fee or
expense that has not been earned or incurred. The lawyer
may retain papers relating to the client to the extent per-
mitted by other law.
. . . .
§ 3-508.4. Misconduct.
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;
. . . .
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the adminis-
tration of justice. Once a lawyer is employed in a profes-
sional capacity, the lawyer shall not, in the course of such
employment, engage in adverse discriminatory treatment
of litigants, witnesses, lawyers, judges, judicial officers or
court personnel on the basis of the person’s race, national
origin, gender, religion, disability, age, sexual orientation
or socio-economic status. This subsection does not pre-
clude legitimate advocacy when these factors are issues
in a proceeding.
336 	283 NeBRASKA RePORTS

Several facts are clearly established by the record: ellis rep-
resented Fuller. ellis never sent Fuller a copy of the impending
dismissal notice. The case was dismissed for failure to pros-
ecute. ellis never attempted to reinstate the case.
The evidence also shows that rather than telling his client
the case was dismissed, ellis strung Fuller along for nearly 2
years. The case was dismissed in April 2008. In July 2008, ellis
sent Fuller a letter asking that he look for a potential witness.
That letter mentioned nothing about the dismissal which had
occurred. ellis never sent the Fullers a letter telling them the
case was dismissed. ellis was often nonresponsive to requests
for information on the case. ellis acted as if the case was active
and it was important to talk to the witness. Well after the case
had been dismissed, ellis met with Fuller and the witness in his
office in 2009.
Throughout these proceedings, ellis claims he told the
Fullers about the impending dismissal notice on March 24,
2008, and claims that the March 28 letter is genuine. The ref-
eree believed the Fullers’ version of events and determined the
March 28 letter was a fabrication. The referee’s determination
about the relative credibility of the Fullers and ellis was sound
and consistent with the evidence. Having reviewed the record
de novo, we agree with the referee that the March 28 letter was
a fabrication.
We also note the referee found that the remainder of Fuller’s
advance payment was not returned to him until May 2010, over
2 years after the case had been dismissed. ellis failed in his
responsibility to oversee those funds regardless of whether he
intentionally withheld the funds to lead the Fullers to believe
the case was still active or simply did not have appropriate pro-
cedures in place to account for those funds.
We agree with the referee that there is clear and convinc-
ing evidence that ellis violated Neb. Ct. R. of Prof. Cond.
§§ 3-501.3 (diligence); 3-501.4(a)(1) through (4) and (b) (com-
munications); 	3-501.15(d) 	and 	(e) 	(safekeeping 	property);
3-501.16(d) 	(declining 	or 	terminating 	representation); 	and
3-508.4(a), (c), and (d) (misconduct); and his oath of office as
an attorney. We determine that ellis committed the acts alleged
STATe ex ReL. COuNSeL FOR DIS. v. eLLIS 	337
Cite as 283 Neb. 329

in the formal charges without consideration of his prior disci-
pline. Accordingly, we need not address ellis’ assigned error
that the referee impermissibly considered his prior discipline in
connection with his analysis of whether ellis violated the rules
of professional conduct. However, ellis’ prior disciplinary case
is relevant in determining the appropriate sanction.
[6] In determining the appropriate sanction, we consider the
discipline imposed in similar circumstances. See State ex rel.
Counsel for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d 433
(2010). We have previously disbarred attorneys who neglected
their client’s cases, failed to respond to the Counsel for
Discipline, and were previously disciplined for similar conduct.
For example, we disbarred an attorney who neglected a client’s
case and court schedules, did not cooperate with the Counsel
for Discipline in a separate case, and had received a previous
prior reprimand for similar conduct. State ex rel. Counsel for
Dis. v. Hart, 270 Neb. 768, 708 N.W.2d 606 (2005). Neglect
of client cases and failure to cooperate with the Counsel for
Discipline are grounds for disbarment. State ex rel. Counsel
for Dis. v. Coe, 271 Neb. 319, 710 N.W.2d 863 (2006). We
disbarred an attorney who neglected his clients’ cases—in one
instance, causing a client’s claim to be time barred—and did
not communicate with his clients. See id. We noted that “a pat-
tern of neglect reveals a particular need for a strong sanction to
deter others from similar misconduct, to maintain the reputa-
tion of the bar as a whole, and to protect the public.” Id. at 322,
710 N.W.2d at 866.
In this case, ellis’ neglect cost Fuller the opportunity to
pursue his claim, regardless of whether that claim would have
succeeded. ellis compounded this error by stringing his client
along for nearly 2 years and attempting to deceive the Counsel
for Discipline. ellis’ actions warrant a strong sanction such as
disbarment for the protection of the public and preservation of
the bar’s reputation. See Hart, supra.
[7] In evaluating attorney discipline cases, we consider aggra-
vating and mitigating circumstances. See State ex rel. Counsel
for Dis. v. Petersen, 272 Neb. 975, 725 N.W.2d 845 (2007).
ellis asserts that he cooperated with the Counsel for Discipline
338 	283 NeBRASKA RePORTS

and that such cooperation should serve as a mitigating factor.
See Switzer, supra. However, ellis’ purported cooperation was
tainted by fabricating evidence intended to deceive the Counsel
for Discipline and bolster his chosen defense. ellis also raises
a lack of prejudice to Fuller as a mitigating factor. The referee
noted that, without regard to prejudice, Fuller should have had
the opportunity to pursue his claim further than ellis’ actions
permitted. We agree with the referee’s analysis and find ellis’
asserted mitigating factors to be entitled to little weight.
[8] ellis also argues that any prior offense is remote in time
and should not be considered in imposing discipline. An iso-
lated instance of misconduct can be a mitigating factor. State
ex rel. Counsel for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d
433 (2010). However, the referee did not find ellis’ previous
disciplinary offense remote in time, and we agree with the
referee that ellis’ previous suspension is an aggravating factor.
See State ex rel. Counsel for Dis. v. Wickenkamp, 277 Neb. 16,
759 N.W.2d 492 (2009). ellis previously neglected a client’s
case, misled the client as to the case’s status, made false state-
ments to the Counsel for Discipline to cover up his negligence,
entered a conditional admission, and was suspended for 1 year.
State ex rel. Special Counsel for Dis. v. Ellis, 265 Neb. 788,
659 N.W.2d 829 (2003). His conduct in this case is similar.
Cumulative acts of attorney misconduct are distinguishable
from isolated incidents, therefore justifying more serious sanc-
tions, State ex rel. Counsel for Dis. v. Thew, 281 Neb. 171, 794
N.W.2d 412 (2011), including disbarment. See Switzer, supra.
We believe that ellis’ acts caused his client harm, see State
ex rel. Counsel for Dis. v. Jones, 270 Neb. 471, 704 N.W.2d
216 (2005), to the extent it denied Fuller the ability to pur-
sue his claim. By fabricating the March 28, 2008, letter, ellis
interfered in a discipline investigation, thus meriting a severe
sanction. See State ex rel. Counsel for Dis. v. Switzer, 275 Neb.
881, 750 N.W.2d 681 (2008). The referee found dishonesty,
fraud, deceit, and misrepresentation, and upon our review of
the record, we find these determinations are established by the
record. upon due consideration, we conclude that disbarment
is the appropriate sanction.
STATe ex ReL. COuNSeL FOR DIS. v. eLLIS 	339
Cite as 283 Neb. 329

CONCLuSION
We find that ellis should be and hereby is disbarred from
the practice of law in Nebraska, effective immediately. ellis is
hereby ordered to comply with all terms of Neb. Ct. R. § 3-316
forthwith and shall be subject to punishment for contempt of
this court upon failure to do so. ellis is also 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 this court.
JudgmeNt of diSbArmeNt.
A liShA C., Appellee , v.
Jeremy C., AppellANt.
808 N.W.2d 875
Filed February 24, 2012. 	No. S-11-233.
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, which an appellate court resolves independently of the trial court.
2. Parent and Child: Paternity: Presumptions: Evidence. under Nebraska com-
mon law, later embodied in Neb. Rev. Stat. § 42-377 (Reissue 2008), legitimacy
of children born during wedlock is presumed, and this presumption may be rebut-
ted only by clear, satisfactory, and convincing evidence.
3. Jurisdiction: Divorce: Paternity: Child Support. The district court has juris-
diction to determine whether the husband is the biological father of a child to be
supported as a result of a dissolution decree.
4. Divorce: Paternity: Child Support. even if paternity is not directly placed in
issue or litigated by the parties to a dissolution proceeding, any dissolution decree
which orders child support implicitly makes a final determination of paternity.
5. Divorce: Paternity: Child Support: Res Judicata. A dissolution decree that
orders child support is res judicata on the issue of paternity.
6. Divorce: Modification of Decree: Paternity: Evidence: Res Judicata. Neb.
Rev. Stat. § 43-1412.01 (Reissue 2008) overrides res judicata principles and
allows, in limited circumstances, an adjudicated father to disestablish a prior,
final paternity determination based on genetic evidence that the adjudicated father
is not the biological father.
7. Statutes. Statutes relating to the same subject are in pari materia and should be
construed together.
8. ____. A statute is not to be read as if open to construction as a matter of course.
9. ____. If the language of a statute is clear, the words of such statute are the end of
any judicial inquiry regarding its meaning.
340 	283 NeBRASKA RePORTS