State ex rel. Counsel for Dis. v. Herzog

State of NebraSka ex rel . C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator , v.
JuliaNNe D uNN herzog , reSpoNDeNt.
762 N.W.2d 608
Filed March 27, 2009. 	No. S-08-012.
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
Watkins’ cooperation and not to object to his request for a
minimum sentence. Watkins’ trial counsel testified that while
he believed the prosecutor’s comments may have violated the
“spirit” of the plea agreement, they did not constitute an actual
violation. The record supports the district court’s implicit find-
ing that the prosecutor’s comments did not violate the plea
agreement, and accordingly, there is no basis for Watkins’
claim that his lawyers were ineffective for failing to advo-
cate otherwise.
attempt to WithDraW plea
[6] Finally, Watkins argues that the district court violated
his right to counsel when it did not appoint new counsel at
the hearing on his motion to withdraw his plea. However, this
claim was not asserted in Watkins’ verified motion for post-
conviction relief and it was not addressed by the district court
in its disposition of that motion. We decline to reach the issue,
based upon the principle that an appellate court will not con-
sider as an assignment of error a question not presented to the
district court for disposition through a defendant’s motion for
postconviction relief.8
CONCLUSION
Finding no error, we affirm the judgment of the district court
denying postconviction relief.
affirmeD.
8 State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006); State v. Caddy,
262 Neb. 38, 628 N.W.2d 251 (2001).
436 	277 NebrASkA repOrTS
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reaches a conclusion independent of the findings of the referee; provided, how-
ever, 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.
kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
Julianne Dunn Herzog, pro se.
David A. Domina and eileen reilly buzzello, of Domina
Law Group, p.C., L.L.O., on brief, for respondent.
heaviCaN, C.J., Wright, C oNNolly, gerrarD, StephaN, and
mCC ormaCk , JJ.
per C uriam.
INTrODUCTION
The office of the Counsel for Discipline of the Nebraska
Supreme 	Court 	filed 	formal 	charges 	against 	respondent,
Julianne Dunn Herzog (Herzog). After a formal hearing, the
referee concluded that Herzog had violated the Nebraska rules
of professional Conduct and recommended a public reprimand
and probation for 1 year. We conclude there was clear and con-
vincing evidence that Herzog violated the rules of professional
Conduct and, accordingly, suspend her from the practice of law
for 3 months, followed by probation for a period of 1 year.
FACTUAL bACkGrOUND
Herzog was licensed to practice law on July 2, 1976. In July
1996, Herzog married David Herzog. Since shortly after their
STATe ex reL. COUNSeL FOr DIS. v. HerzOG 	437
Cite as 277 Neb. 436

marriage, Herzog and David have practiced law together as
Herzog & Herzog, p.C. Herzog is an employee of that corpora-
tion; David is its sole shareholder.
This disciplinary action against Herzog involves a family dis-
pute among the children of Dale and rosemary Dunn regarding
guardianship-conservatorship proceedings filed with respect
to rosemary. primarily, the dispute was between Herzog, a
Nebraska attorney practicing in the Omaha, Nebraska, area,
on one side, and Herzog’s siblings on the other side. A brief
review of the facts of the underlying dispute reveals that
Herzog’s siblings were concerned about rosemary’s ability to
care for herself and were interested in appointing a guardian
for her. Herzog was initially opposed to this plan; she even-
tually agreed to the need for a guardian and conservator for
rosemary but disagreed with her siblings about virtually every-
thing related to the guardianship-conservatorship.
A brief recitation of the relevant proceedings is helpful. On
December 29, 2004, Herzog’s sister, Mary elizabeth Dunn,
filed a petition for the appointment of a guardian and conserva-
tor for rosemary. The next day, Mary elizabeth was appointed
rosemary’s temporary guardian and conservator. On January
7, 2005, over the objections of her siblings, Herzog entered
an appearance on rosemary’s behalf. On January 14, Herzog’s
brother, D. eugene Dunn, was appointed rosemary’s tempo-
rary guardian. Fremont National bank & Trust Company was
appointed rosemary’s conservator. Then on February 23, a
guardian ad litem was appointed to represent rosemary’s inter-
ests. On November 21, another of Herzog’s brothers, Daniel
Dunn, was appointed rosemary’s guardian. Daniel served in
that capacity at the time of the disciplinary hearing in this case.
Fremont National bank & Trust Company also continued to act
as rosemary’s conservator at the time of the hearing.
On December 19, 2005, Herzog filed a notice of appeal,
purportedly on rosemary’s behalf. That notice of appeal was
from the order appointing Daniel as guardian. On this same
date, Herzog and her husband David, who had since entered
an appearance on rosemary’s behalf, filed a motion with the
county court asking for leave to withdraw. This motion was
granted on December 27.
438 	277 NebrASkA repOrTS

Despite the granting of the motion to withdraw, on March
10, 2006, Herzog filed a “Notice of Appearance” in the county
court. In that notice, Herzog indicated that she continued to
represent rosemary’s interests. On April 21, Herzog filed vari-
ous motions with the county court asking that the guardian ad
litem, conservator, and guardian all be removed for various
acts of misfeasance and malfeasance. A pretrial conference
was held on April 21. At the conference, the county court
struck all Herzog’s motions for the reason that Herzog had
withdrawn and no longer represented rosemary’s interests.
Herzog was granted leave to file the motions in her individual
capacity. Herzog later filed, in her own behalf, a motion to
adopt the prior motions; the motions asking for the removal of
the guardian ad litem, conservator, and guardian were subse-
quently denied.
On May 1, 2006, a complaint was filed against Herzog
before the Committee on Inquiry of the Second Disciplinary
District. That complaint was related to Herzog’s action in the
guardianship proceedings. Herzog stipulated to a private repri-
mand, which was issued on November 21.
On July 28, 2006, Herzog filed with the county court a
notice of appeal, both in her own behalf and on rosemary’s
behalf. Herzog purported to appeal from all “final orders”
of the county court which occurred during the time she rep-
resented rosemary—January 7 to December 28, 2005. This
appeal was eventually dismissed for lack of jurisdiction. After
that dismissal, David filed, at Herzog’s direction, a petition for
further review of the dismissal.
Herzog filed another notice of appeal on February 12, 2007,
again both in her own behalf and on rosemary’s behalf. This
notice appealed all rulings made between December 2004 and
January 10, 2007, and again noted that Herzog was rosemary’s
counsel from January to December 2005.
The Counsel for Discipline filed formal charges against
Herzog on January 2, 2008, for actions relating to rosemary’s
guardianship 	proceedings. 	The 	Counsel 	for 	Discipline
alleged that Herzog’s actions in the following particulars
were 	misconduct 	in 	violation 	of 	the 	Nebraska 	rules 	of
professional Conduct:
STATe ex reL. COUNSeL FOr DIS. v. HerzOG 	439
Cite as 277 Neb. 436

• Herzog’s July 28, 2006, notice of appeal alleging that
notice was filed by rosemary through Herzog as counsel,
because at the time Herzog filed the notice, she was not autho-
rized to do so by rosemary or by rosemary’s guardian;
• Herzog’s February 22, 2007, petition for further review
filed with this court from the Court of Appeals’ dismissal of the
July 28, 2006, appeal for lack of jurisdiction;
• Herzog’s February 12, 2007, notice of appeal alleging that
notice was filed by rosemary “by and through [Herzog] her
counsel from January, 2005, to December, 2005,” because at
the time Herzog filed the notice, she was not authorized to do
so by rosemary or by rosemary’s guardian.
The Counsel for Discipline alleges that the above filings
were in violation of Neb. rev. Stat. § 7-104 (reissue 2007)
(oath of office as attorney) and of Neb. Ct. r. of prof. Cond.
§ 3-503.1 (meritorious claims and contentions); § 3-503.2
(expediting litigation); § 3-503.3(a)(1) (candor toward tribunal);
and § 3-508.4(a) (violation of disciplinary rule), § 3-508.4(c)
(engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), and § 3-508.4(d) (conduct prejudicial to
administration of justice).
A disciplinary hearing was held. The referee filed his report
following that hearing. In the report, the referee found that
Herzog had violated §§ 3-503.2 and 3-508.4(a) and (d). The
referee specifically found that Herzog’s conduct did not vio-
late §§ 3-503.1, 3-503.3(a)(1), or 3-508.4(c). The referee
made no finding as to whether Herzog violated § 7-104. The
referee recommended that Herzog be publicly reprimanded
and that her license be placed on a probationary status for 1
year. Herzog filed exceptions to the referee’s report, and the
Counsel for Discipline filed cross-exceptions.
ASSIGNMeNTS OF errOr
On appeal, Herzog argues that the referee erred by (1)
considering evidence of events prior to May 2006 to evalu-
ate Herzog’s guilt with respect to the formal charges, (2)
considering in this disciplinary action Herzog’s previous pri-
vate reprimand for different conduct in the same guardianship
proceeding, (3) finding that Herzog endeavored to “control”
440 	277 NebrASkA repOrTS

rosemary’s person and property and used legal processes to
accomplish this goal, and (4) finding that Herzog violated
§§ 3-503.2 and 3-508.4(a) and (d).
The Counsel for Discipline argues that the referee erred by
not finding that Herzog violated §§ 3-503.1, 3-503.3(a)(1), and
3-508.4(c) and in imposing a sanction of a public reprimand
with probation.
STANDArD OF reVIeW
[1] 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; pro-
vided, however, that where the credible evidence is in con-
flict on a material issue of fact, 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.1
[2] Disciplinary charges against an attorney must be estab-
lished by clear and convincing evidence.2
ANALYSIS
As an initial matter, though Herzog argues that the referee
erred in various respects, three of those contentions are without
merit, given this court’s standard of review. because we review
disciplinary proceedings de novo on the record, whatever the
referee might have improperly considered is immaterial to
our review.
We 	are 	therefore 	generally 	presented 	with 	two 	issues
on appeal: (1) what provisions of the Nebraska rules of
professional Conduct, if any, were violated and (2) the appro-
priate sanction for such violations.
herzog’S exCeptioNS: § 3-503.2
We first address Herzog’s argument that the referee erred in
finding that she violated § 3-503.2. Section 3-503.2 deals with
expediting litigation and provides:
1 State ex rel. Counsel for Dis. v. Rokahr, 267 Neb. 436, 675 N.W.2d 117
(2004).
2 See id.
STATe ex reL. COUNSeL FOr DIS. v. HerzOG 	441
Cite as 277 Neb. 436

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 cli-
ent when the lawyer knows or when it is obvious that
such action would serve merely to harass or maliciously
injure another.
With regard to § 3-503.2, the referee concluded that “filing an
appeal on behalf of someone no longer legally one’s client in
and of itself violates [the rule].”
We agree with the referee that there is clear and convinc-
ing evidence that Herzog’s actions violated § 3-503.2. At the
time Herzog filed the two notices of appeal on July 28, 2006,
and February 12, 2007, and directed David to file the petition
for further review on February 22, Herzog had already been
granted leave to withdraw as counsel for rosemary. To the
extent there is a question about whether Herzog represented
rosemary pending the filing of any notice that she, Herzog,
actually had withdrawn as counsel, we note that by April 21,
2006, when she filed several motions before the county court,
Herzog was aware that the county court no longer considered
her counsel for rosemary. And a review of the notices of
appeal themselves further demonstrates that Herzog was aware
that she was no longer representing rosemary, as these notices
contain language limiting them to time periods in which she
had been rosemary’s counsel of record.
It is clear from a review of the record that by the time
Herzog filed the first notice of appeal on July 28, 2006, she
was aware that she no longer represented rosemary. We there-
fore agree with the referee that Herzog was purporting to act as
counsel for someone who was not her client and that such was
a violation of § 3-503.2.
herzog’S exCeptioNS: § 3-508.4(a) aND (d)
We next turn our attention to Herzog’s contention that her
conduct was not a violation of § 3-508.4(a) and (d). Section
3-508.4 provides in relevant part: “It is professional mis-
conduct 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 [and]
442 	277 NebrASkA repOrTS

(d) engage in conduct that is prejudicial to the administration
of justice.”
Again, we agree with the referee that Herzog violated
§ 3-508.4(a) by virtue of her violation of § 3-503.2. And
we further concur with the referee that there is clear and
convincing evidence that Herzog’s conduct was in violation
of § 3-508.4(d). Herzog was aware that she no longer repre-
sented rosemary, yet she filed at least two notices of appeal
with the county court and a petition for further review with
this court on rosemary’s behalf. The first notice was filed
a full 3 months after the county court specifically informed
Herzog that she no longer had the ability to file motions
on rosemary’s behalf. Such conduct was prejudicial to the
administration of justice.
We conclude that Herzog’s arguments that she did not vio-
late §§ 3-503.2 and 3-508.4(a) and (d) are without merit.
C ouNSel for D iSCipliNe’S C roSS-exCeptioNS
The Counsel for Discipline filed its own exceptions to the
referee’s report. The Counsel for Discipline contends that the
referee erred by not concluding Herzog had violated §§ 3-503.1,
3-503.3(a)(1), and 3-508.4(c).
Section 3-503.1 provides in part that “[a] lawyer shall not
bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis in law and fact for doing so
that is not frivolous, which includes a good faith argument
for an extension, modification or reversal of existing law.”
And § 3-503.3(a) provides that “[a] lawyer shall not know-
ingly: (1) make a false statement of fact or law to a tribunal or
fail to correct a false statement of material fact or law previ-
ously made to the tribunal by the lawyer.” Finally, § 3-508.4
provides that “[i]t is professional misconduct for a lawyer to
. . . (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”
We agree with the referee that there was not clear and con-
vincing evidence to show violations of §§ 3-503.1, 3-503.3, and
3-508.4(c). Central to this determination are Herzog’s attempts,
in the two notices of appeal, to limit the scope of those notices
to periods in which she was rosemary’s counsel of record. The
STATe ex reL. COUNSeL FOr DIS. v. HerzOG 	443
Cite as 277 Neb. 436

setting forth of such limitations shows an intent on Herzog’s
part to be candid about her representation of rosemary, and
thus was made in good faith and was not frivolous, was not
knowingly false, and was not otherwise conduct that involved
“dishonesty, fraud, deceit or misrepresentation.”
While we do not believe Herzog was engaging in knowingly
false or fraudulent conduct, we do want to make clear that
by filing the notices of appeal and petition for further review,
Herzog was, in fact, acting as rosemary’s counsel. The inclu-
sion of limiting language in these notices of appeal does not
serve to negate the fact that by filing those notices, Herzog
purported to act as rosemary’s attorney.
appropriate D iSCipliNe
Finally, we turn to the question of the appropriate discipline.
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.
[3-5] each attorney discipline case must be evaluated indi-
vidually in light of its particular facts and circumstances.3
This court will consider the attorney’s acts both underlying
the alleged misconduct and throughout the proceeding.4 The
determination of an appropriate penalty to be imposed also
requires the consideration of any aggravating or mitigat-
ing factors.5
The referee recommended that Herzog be publicly repri-
manded and that her law license be placed on a probationary
3 State ex rel. Counsel for Dis. v. Orr, ante p. 102, 759 N.W.2d 702 (2009).
4 Id.
5 Id.
444 	277 NebrASkA repOrTS

status for 1 year. The Counsel for Discipline has filed excep-
tions to this recommendation and instead suggests a 1-year
suspension from the practice of law.
The facts in this case show that Herzog filed two notices of
appeal and a petition for further review on behalf of someone
who was not her client. And these filings were made despite
the fact that Herzog had filed and been granted leave to with-
draw in December 2005 and, moreover, had known for at least
3 months prior to the first filing on July 28, 2006, that as far
as the county court was concerned, she had withdrawn as
rosemary’s counsel.
We note that, as was found by the referee, Herzog had many
letters of support, as well as character testimony from col-
leagues who attested to her good reputation. However, many of
those same colleagues also noted that Herzog was “aggressive,”
“tenacious,” and not a “shrinking violet.” We agree with the
finding of the referee that
[a]lthough these traits can serve a lawyer well in the zeal-
ous representation of a client’s cause, they can become a
sword when turned on family members who don’t accede
to one’s wishes. It is then that the law and its remedies
become a means to an end when utilized by the lawyer
who decides to serve his or her own wishes, rather than
those of the client relative.
but 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 previ-
ous private reprimand, Herzog continued to engage in unethical
behavior in the guardianship proceedings.
based upon these considerations, this court concludes that
a public reprimand and 1 year’s probation is too lenient. We
instead find that Herzog should be and hereby is suspended
from the practice of law for a period of 3 months. Such suspen-
sion shall be followed by probation for a period of 1 year.
CONCLUSION
We find by clear and convincing evidence that Herzog vio-
lated §§ 3-503.2 and 3-508.4(a) and (d). In addition, we find
there is insufficient evidence that Herzog violated §§ 3-503.1,
STATe ex reL. COUNSeL FOr DIS. v. HerzOG 	445
Cite as 277 Neb. 436

3-503.3(a)(1), and 3-508.4(c). It is the judgment of this court
that Herzog be suspended from the practice of law for a
period of 3 months, effective immediately. Following that
suspension, Herzog shall be placed on probation for a period
of 1 year.
Herzog shall comply with Neb. Ct. r. § 3-316 and, upon fail-
ure to do so, shall be subject to a punishment for contempt of
this court. At the end of the 3-month suspension period, Herzog
may apply to 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. We also direct Herzog 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) within 60
days after an order imposing costs and expenses, if any, is
entered by this court.
JuDgmeNt of SuSpeNSioN.
miller-lermaN, J., not participating.
aNN riCkerl , appellaNt, v. farmerS iNSuraNCe exChaNge ,
DoiNg buSiNeSS aS farmerS iNSuraNCe group, appellee .
763 N.W.2d 86
Filed March 27, 2009. 	No. S-08-188.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Insurance: Contracts: Appeal and Error. The interpretation of an insurance
policy is a question of law. In reviewing questions of law, an appellate court
resolves the question independently of the lower court’s conclusion.
4. Insurance: Contracts. An insurance policy is a contract, and its terms provide
the scope of the policy’s coverage.
446 	277 NebrASkA repOrTS