State ex rel. Counsel for Dis. v. Scott

194 	275 Nebraska reports
with oJs for evaluation to aid the court in disposition.13 When
committing an adjudicated juvenile to the custody of oJs,
a court must order the “initial level of treatment.”14 section
43-408(5) provides that “[i]f a juvenile is placed in detention
after the initial level of treatment is determined by the commit-
ting court,” the court is required to hold periodic status hear-
ings. the same statute specifically provides that “[p]lacement
of a juvenile in detention shall not be considered as a treatment
service.”15 thus, it is possible for a juvenile to abscond from an
oJs placement or commitment without committing the offense
of escape from official detention.
In this case, however, the facts clearly establish that Matthew
was being held in detention pursuant to official proceedings
when he fled from the transportation employee. accordingly,
the juvenile court did not err in adjudicating Matthew pursu-
ant to § 43-247(2) as a child who has committed an act which
would constitute a felony under the laws of this state. Finding
no error, we affirm the judgment of the separate juvenile court.
A ffirmed .
13 Neb. rev. stat. §§ 43-281 and 43-413 (reissue 2004).
14 § 43-408(2).
15 § 43-408(5).
S tAte of N ebrASkA ex rel . C ouNSel for diSCipliNe
of the N ebrASkA S upreme C ourt , relAtor , v .
riChArd e. SCott , reSpoNdeNt .
745 N.W.2d 585
Filed March 7, 2008. 	No. s-97-584.
1. Disciplinary Proceedings: Appeal and Error. In attorney discipline and admis-
sion cases, the Nebraska supreme Court reviews recommendations de novo on the
record, reaching a conclusion independent of the referee’s findings. When cred-
ible evidence is in conflict on material issues of fact, however, the 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. In considering an application for reinstatement to the
practice of law, the Nebraska supreme Court owes a solemn duty to protect the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

public and the legal profession, which consideration must be performed without
regard to feelings of sympathy for the applicant.
3. ____. a mere sentimental belief that a disbarred lawyer has been punished enough
will not justify his or her restoration to the practice of law. the primary concern
is whether the applicant, despite the former misconduct, is now fit to be admitted
to the practice of law and whether there is a reasonable basis to believe that the
present fitness will permanently continue in the future.
4. Disciplinary Proceedings: Proof. a disbarred attorney has the burden of proof
to establish, by clear and convincing evidence, good moral character to war-
rant reinstatement.
5. ____: ____. the proof of good character must exceed that required under an
original application for admission to the bar because it must overcome the former
adverse judgment of the applicant’s character.
6. ____: ____. the more egregious the underlying misconduct, the heavier an
applicant’s burden to prove his or her present fitness to practice law.
original action. application for reinstatement denied.
kent 	L. 	Frobish, 	assistant 	Counsel 	for 	Discipline, 	for
relator.
David a. Domina, of Domina Law Group, p.C., L.L.o., for
respondent.
W right , C oNNolly , gerrArd , S tephAN, mCC ormACk , and
miller -lermAN, JJ.
per C uriAm .
on June 20, 1997, we imposed a 1-year suspension on
richard e. scott for his violation of several disciplinary rules.1
a week later,2 we disbarred scott after he pled guilty to one
count of filing a false tax return.3
In april 2007, scott applied for reinstatement of his license
to practice law in Nebraska. Counsel for Discipline filed a
resistance to the application. We appointed a referee, who rec-
ommended that we readmit scott contingent upon certain con-
ditions. Counsel for Discipline filed exceptions to the referee’s
1 State ex rel. NSBA v. Scott, 252 Neb. 698, 564 N.W.2d 588 (1997).
2 State ex rel. NSBA v. Scott, 252 Neb. 749, 566 N.W.2d 741 (1997).
3 I.r.C. § 7206(1) (2000).
state ex reL. CouNseL For DIs. v. sCott 	195
Cite as 275 Neb. 194

196 	275 Nebraska reports
recommendations. For the reasons that follow, we deny scott’s
application for reinstatement.
stateMeNt oF FaCts
scott was admitted to the Nebraska bar on February 28,
1972. In october 1979, scott joined a small collections and
personal injury law firm in Lincoln, Nebraska, managed by
brian Watkins, an acquaintance of scott’s from law school.
scott and Watkins became partners and agreed to share the
profits and expenses equally.
1-yeAr S uSpeNSioN
on March 17, 1994, scott was retained by Daniel Wheeler
to represent him in a claim before the Nebraska Workers’
Compensation Court against Wheeler’s former employer and
the state of Nebraska. scott filed a petition on behalf of
Wheeler in the Workers’ Compensation Court.
Wheeler’s trial was set for July 27, 1994. on July 7, scott
filed a motion for continuance, alleging that “the plaintiff is in
the state of alaska for until [sic] the first week in august and
will be unable to attend the hearing.” the motion was sustained,
and the trial date was continued until august 8. on august 8,
neither scott nor Wheeler attended the trial. scott was attend-
ing a hearing in kearney, Nebraska. Wheeler claimed he was
never notified of the august 8 trial date or that scott would not
be attending. because scott could not attend the august 8 trial,
scott sent Watkins instead. Watkins requested that the court
continue the trial until october because Wheeler was allegedly
“in the state of alaska until the first week of october 1994.”
the court denied Watkins’ request and shortly thereafter entered
an order dismissing Wheeler’s case with prejudice.
In october 1994, scott received a correspondence from the
Department of Veterans affairs (Va), informing scott that it
was claiming a subrogation interest in Wheeler’s workers’ com-
pensation claim. Included with the letter were Wheeler’s medi-
cal records from the Va hospital. In a letter dated November
7, 1994, scott informed Wheeler of the subrogation claim and
stated that he “will try and go forward with your case how-
ever, I’m certainly not making any guarantees.” In December,

Wheeler requested information regarding his workers’ compen-
sation case. scott responded by letter, explaining that because
of the lateness of the information received from the Va, he
was having a difficult time with the case. scott said nothing to
Wheeler about the prior dismissal of the case.
In January 1995, the Va requested an update on Wheeler’s
workers’ compensation claim. scott informed the Va that the
case had been dismissed but that he was still working on the
claim. scott received another request for an update from the Va
in april. In his response, scott stated that “Wheeler’s matter has
been submitted to the Worker[s’] Compensation Court. to date,
we have not received a result as yet, but will keep you informed
as to the status of this claim.” at the time of scott’s response,
no new evidence had been submitted, nor was anything pend-
ing before the court. the Va made another request in october,
seeking information regarding Wheeler’s workers’ compensa-
tion claim. In his response, scott explained that Wheeler’s
workers’ compensation claim “is going to be dismissed.”
on December 26, 1995, Wheeler notified scott that he was
terminating scott’s representation. Wheeler filed a complaint
against scott with the Counsel for Discipline. scott replied to
the complaint in a letter dated January 23, 1996, stating:
the Workers’ Compensation case was scheduled and con-
tinued twice because of [Wheeler’s] request. the final time
the matter was set, . . . Wheeler did not show up, which
was in august of 1994 and the matter was dismissed at
that time. We would have had a very difficult time of prov-
ing our case, since we had no doctor tieing [sic] the injury
to a work related accident and without his testimony I felt
that there would be no need to go further.
this court found that in light of the appointed referee’s find-
ings, scott’s response to the complaint was
not factually correct or was misleading in the following
respects: (1) Wheeler never requested a continuance of his
case; (2) Wheeler did not show up at the trial because he
was never given notice of the trial date; and (3) the work-
ers’ compensation case was dismissed because the judge
would not grant the request for continuance made at the
time the trial was scheduled to begin, Watkins was not
state ex reL. CouNseL For DIs. v. sCott 	197
Cite as 275 Neb. 194

198 	275 Nebraska reports
prepared for trial, and scott failed to provide defendants
with the mandatory disclosure statements.4
We 	also 	noted 	several 	other 	findings 	made 	by 	the 	ref-
eree, including:
scott misrepresented that Wheeler would be returning
to Lincoln on a certain date, . . . scott had no basis for
stating a date upon which Wheeler would return and had
a weak basis for concluding that Wheeler was in alaska,
and . . . scott made a series of misrepresentations to rep-
resentatives of Veterans affairs with regard to the status of
the workers’ compensation case.5
We recognized that there were mitigating factors present.
In particular, we noted that scott’s actions were done in an
effort to maintain the viability of Wheeler’s claim and not to
benefit himself, that scott did not receive a fee for representing
Wheeler, and that Wheeler was not injured by scott’s conduct.
We concluded, however, that “these mitigating factors fail to
overcome the fact that scott deliberately lied to a court and to
[the Va].”6 accordingly, on June 20, 1997, scott was suspended
from the practice of law for 1 year.7
filiNg fAlSe tAx returNS
When scott began working with Watkins in late 1979, scott
adopted 	Watkins’ unethical 	procedures 	for 	handling 	funds
received by the firm. scott testified that as third-party checks
were received by the firm to settle cases, the checks would
be taken to the bank, with the client present, and the checks
would be cashed. the client would receive his or her portion of
the settlement, and the firm would take the remainder without
ever recording the receipt of the income on the firm’s books
or reporting the income on scott’s or Watkins’ tax returns.
similarly, when a client paid for the firm’s services in cash, that
4 State ex rel. NSBA v. Scott, supra note 1, 252 Neb. at 703, 564 N.W.2d at
591.
5 Id. at 703, 564 N.W.2d at 592.
6 Id. at 704, 564 N.W.2d at 592.
7 see id.

payment would not be recorded on the firm’s books or on the
appropriate tax return.
scott testified that this pattern of failing to record income
and misstating income on state and federal tax returns contin-
ued annually until the Internal revenue service (Irs) learned
of the firm’s fraudulent conduct in 1994. In 1994, the Irs
interviewed scott in connection with its investigation of his tax
reporting. scott testified that during the interview, he cooper-
ated, answered the questions truthfully, and admitted to what
he had done.
several federal criminal charges were filed against scott in
a superseding indictment on august 21, 1996. scott entered a
plea of guilty to one count of the criminal indictment, and the
remaining charges were dismissed. that count of the indictment
had alleged that scott willfully made and subscribed to a u.s.
individual income tax return for the 1990 calendar year, which
return was false “in that said return stated . . . that [scott] had
taxable income of $2,915.00, whereas, [scott] well knew and
believed that his taxable income . . . was at least $97,277.85 for
the calendar year of 1990.”
Judgment was entered against scott, and he was sentenced
to serve 1 year 1 day in federal prison. the judgment also con-
tained a section entitled “statement of reasons for sentence,”
which included the following: “the Court determines that the
applicable guidelines are: . . . restitution: $61,112.28.” the court
also explained in its judgment that a “[f]ine is waived because of
[scott’s] inability to pay a fine, and because payment of a fine
would interfere with [scott’s] ability to make restitution.”
on June 2, 1997, scott voluntarily surrendered his license to
practice law, admitting that he violated Canon 1, Dr 1-102(a)(3)
and (4), of the Code of professional responsibility. on June 27,
scott was disbarred.8 after completing his sentence of impris-
onment, scott returned to Lincoln.
A ppliCAtioNS for reiNStAtemeNt
In october 2005, scott filed an application for reinstatement.
Counsel for Discipline filed a resistance to scott’s application.
8 State ex rel. NSBA v. Scott, supra note 2.
state ex reL. CouNseL For DIs. v. sCott 	199
Cite as 275 Neb. 194

200 	275 Nebraska reports
this application was denied without a hearing. In april 2007,
scott again applied for reinstatement of his license and Counsel
for Discipline filed another resistance to scott’s application. We
appointed a referee who conducted an evidentiary hearing. at
the hearing, scott presented evidence regarding his work his-
tory following his release from prison. the record reflects that
shortly after leaving prison, scott worked for approximately
2 years for a central Nebraska feedlot. scott was hired by the
feedlot to assist the owners and their attorneys in the inves-
tigation of apparent fraud and embezzlement by the feedlot
manager. scott’s duties included, among other things, analyzing
and matching documents, invoices, and bank records, and then
reporting his findings to the attorneys involved. after finishing
his employment with the feedlot, scott continued working as an
investigator for a series of attorneys.
In 2005, scott entered into a partnership with two other
individuals and established a partnership called abC Gaming
that promoted gaming ventures on behalf of Indian tribes. the
relationship between the partners ended after approximately
9 months when the other two partners allegedly failed to pay
scott income that was owed to him. at the time of the hearing
in this case, the dispute over the alleged earnings was being
litigated in Lincoln County, Nebraska.
scott is currently working for an environmental firm in
Lincoln that does ground water testing and lead remediation,
among other things. scott testified that since being disbarred
in 1997, he has at no time given legal advice or engaged in the
unauthorized practice of law.
With regard to making restitution, scott testified that he has
reached a settlement agreement with the state of Nebraska,
Department of revenue. pursuant to the settlement agreement,
scott is making monthly payments of $150. scott still owes the
state of Nebraska approximately $18,000, but scott testified that
the state had informed him that if he were to pay a lump sum of
$3,000 or $4,000, the entire amount would be settled.
as to the federal income tax obligation owed to the Irs,
scott testified that 5 years ago, he was informed that he owed
approximately $300,000 to as much as $400,000 in taxes,
interest, and penalties. the record reflects that scott has not

made any payments to the Irs in relation to this amount. scott
testified that he has tried several times to negotiate a payment
schedule and come to an agreed-upon balance with the Irs, but
has been unsuccessful.
scott explained that the Irs has not attempted to collect
payments from him for more than 3 years. With regard to the
$61,112.28 restitution, scott testified that it has never been
paid, nor has the Irs attempted to collect this amount. scott
recognizes that because he applied for reinstatement, the Irs
will likely reinitiate collection proceedings against him. scott
stated that he would “welcome” the opportunity to reach an
agreement with the Irs and would be willing to make his pay-
ments “[i]f the ability is there . . . .”
at the hearing, scott’s wife and a longtime friend testified in
favor of scott’s reinstatement. scott also offered several letters
supporting his reinstatement, including letters from practicing
attorneys, former employers, business associates, and a pastor.
scott has no criminal record other than the 1997 conviction
which resulted in his disbarment.
Following the hearing, the referee recommended that we
readmit scott to the practice of law, contingent upon scott’s
execution of a mutually agreeable repayment plan with the
Irs, commencement of payments under the plan, and success-
ful completion of the Nebraska bar examination. Counsel for
Discipline filed exceptions to the referee’s recommendation.
on January 10, 2008, the date of scott’s oral argument to this
court, scott filed a “Motion for Leave to supplement record
and report Developments.” We granted scott’s motion and
received his accompanying affidavit and attached exhibits.
assIGNMeNt oF error
Counsel for Discipline takes exception to the referee’s find-
ings, which we summarize, that scott currently possesses good
moral character sufficient to warrant reinstatement and that
scott’s present fitness will permanently continue in the future.
staNDarD oF reVIeW
[1] In attorney discipline and admission cases, we review
recommendations de novo on the record, reaching a conclusion
state ex reL. CouNseL For DIs. v. sCott 	201
Cite as 275 Neb. 194

202 	275 Nebraska reports
independent of the referee’s findings.9 When credible evidence
is in conflict on material issues of fact, however, 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.10
aNaLYsIs
[2,3] as the court which disbarred scott, we have inherent
power to reinstate him to the practice of law.11 We recognize,
however, that in considering an application for reinstatement to
the practice of law, this court owes a solemn duty to protect the
public and the legal profession, which consideration must be
performed without regard to feelings of sympathy for the appli-
cant.12 a mere sentimental belief that a disbarred lawyer has
been punished enough will not justify his or her restoration to
the practice of law.13 the primary concern is whether the appli-
cant, despite the former misconduct, is now fit to be admitted
to the practice of law and whether there is a reasonable basis to
believe that the present fitness will permanently continue in the
future.14 In short, reinstatement after disbarment is difficult.15
[4-6] a disbarred attorney has the burden of proof to estab-
lish good moral character to warrant reinstatement.16 the appli-
cant must carry this burden by clear and convincing evidence.17
the proof of good character must exceed that required under
an original application for admission to the bar because it
must overcome the former adverse judgment of the applicant’s
9 State ex rel. NSBA v. Kinney, 274 Neb. 412, 740 N.W.2d 607 (2007).
10 Id.
11 see State ex rel. Counsel for Dis. v. Mellor, 271 Neb. 482, 712 N.W.2d 817
(2006).
12 Id.
13 State ex rel. NSBA v. Kinney, supra note 9.
14 State ex rel. Counsel for Dis. v. Mellor, supra note 11.
15 see id.
16 State ex rel. NSBA v. Kinney, supra note 9.
17 see, id.; Neb. Ct. r. of Discipline 10(J) and (V) (rev. 2005).

character.18 It naturally follows that the more egregious the
underlying misconduct, the heavier an applicant’s burden to
prove his or her present fitness to practice law.19
In June 1997, we suspended scott from the practice of law
for a period of 1 year for, among other things, deliberately
lying to a court. seven days later, we disbarred scott after he
pled guilty to one count of filing a false tax return. scott now
seeks reinstatement of his license. Despite the misconduct that
led to scott’s disbarment, the referee recommended that scott
be reinstated.
the record reflects that since his release from prison, scott
has taken positive steps to reestablish himself in the commu-
nity. Furthermore, scott’s testimony reflects that he now takes
responsibility for his past mistakes and appears to be remorse-
ful. However, while scott’s efforts in this regard are certainly
commendable, we disagree with the referee’s recommendation
that scott be reinstated to the practice of law at this time. We
find the evidence of scott’s present moral character to be insuf-
ficient to overcome the heavy burden imposed by his past egre-
gious misconduct.
For example, in State ex rel. NSBA v. Kinney,20 an applicant
for reinstatement had been disbarred after he kept fees that
should have been turned over to his employer’s law firm. twenty
years later, he sought reinstatement. In granting his application
for reinstatement, we noted, among other things, that since his
disbarment, the applicant had effectively addressed his drug
and alcohol problems, made restitution to his employer for the
misappropriated funds, and had become involved with many
charitable organizations.
but in the present case, scott has a significantly greater his-
tory of dishonest conduct. scott committed a serious crime—he
intentionally and grossly misstated his income and knowingly
filed fraudulent tax returns for more than 10 years. scott testi-
fied that he knew what he was doing was illegal, yet continued
18 see State ex rel. NSBA v. Kinney, supra note 9.
19 Id.; State ex rel. Counsel for Dis. v. Mellor, supra note 11.
20 State ex rel. NSBA v. Kinney, supra note 9.
state ex reL. CouNseL For DIs. v. sCott 	203
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204 	275 Nebraska reports
his illegal conduct until he was finally caught by the Irs. the
duration and repetitive nature of scott’s dishonest actions dis-
tinguishes this applicant from the applicant in Kinney. In short,
we are very troubled by the fact that for more than a decade,
scott made a conscious and continuous effort to defraud the
government. We further note that scott’s disbarment for filing
fraudulent tax returns was not the first time scott had been
disciplined by this court. unlike the applicant in Kinney, scott,
in an incident unrelated to his tax fraud, was given a 1-year
suspension for, among other things, lying to a court.
Furthermore, in reinstating the applicant in Kinney, we spe-
cifically noted that restitution had been made. but here, scott
has failed to make a single payment in restitution to the Irs
despite the fact that, including taxes, penalties, and interest, the
total amount owed may be as high as $300,000 or $400,000. as
justification for his lack of payment, scott explained that the
Irs has not attempted to collect the money from him for more
than 3 years. While we recognize that scott has made some
payments to the state of Nebraska and recently made an effort
to contact the Irs, before this time, insufficient effort was
made. and more importantly, no actual restitution payments
have been submitted to the Irs. We find scott’s restitution
efforts to be inadequate.
upon due consideration of the record, we conclude that
given the egregious and prolonged nature of scott’s past dis-
honest conduct, his prior discipline, and his insufficient efforts
to make restitution, scott has not met his burden of establishing
sufficient moral character to warrant reinstatement.
CoNCLusIoN
We conclude on the basis of our independent review that
scott has not met his burden of showing by clear and con-
vincing evidence that his license to practice law in Nebraska
should be reinstated at this time. scott’s application is there-
fore denied.
A ppliCAtioN for reiNStAtemeNt deNied .
heAviCAN, C.J., not participating.