State ex rel. Counsel for Dis. v. Koenig

State of NebraSka ex rel . C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator ,
v. lyle J. koeNig , reSpoNDeNt.
769 N.W.2d 378
Filed July 31, 2009. 	No. S-08-128.
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.
2. ____: ____. When credible evidence is in conflict on material issues 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.
3. Disciplinary Proceedings: Proof. In order to sustain a charge in a lawyer discipline
proceeding, the charge must be established by clear and convincing evidence.
4. Disciplinary Proceedings. To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, the Nebraska Supreme
Court considers the following factors: (1) the nature of the 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.
5. ____. With respect to the imposition of attorney discipline, the Nebraska Supreme
Court evaluates each attorney discipline case in light of its particular facts and
circumstances.
6. ____. In a disciplinary action against an attorney, the Nebraska Supreme Court
will consider the attorney’s acts both underlying the alleged misconduct and
throughout the proceeding.
7. ____. In a disciplinary action against an attorney, the determination of an appro-
priate penalty to be imposed requires the consideration of any aggravating or
mitigating factors.
Original action. Judgment of suspension.
Kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
Clinton J. Gatz for respondent.
Lyle J. Koenig, pro se.
heaviCaN, C.J., Wright, gerrarD, StephaN, mCC ormaCk,
and miller-lermaN, JJ.
per C uriam.
The office of the Counsel for Discipline of the Nebraska
Supreme Court filed formal charges against respondent, Lyle J.
204 	278 NebrASKA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Koenig. Following a hearing, the referee concluded that Koenig
had violated the Nebraska rules of professional Conduct and
Neb. rev. Stat. § 7-104 (reissue 2007). The referee rec-
ommended suspension from the practice of law for 1 year.
Koenig takes exception to the referee’s findings and recom-
mended discipline.
We conclude there is clear and convincing evidence that
Koenig violated the rules of professional conduct and, for the
reasons set forth, suspend him from the practice of law for
120 days.
FACTS
Koenig was admitted to the practice of law in the State of
Nebraska on February 28, 1972, and, at all relevant times, was
engaged in the private practice of law in beatrice, Nebraska.
At his law office in beatrice, Koenig employed a paralegal,
who later became an associate in his practice, named Dustin
A. Garrison. Garrison was cited by the Nebraska State patrol
for driving without a valid registration or proper proof of
insurance. Following a 10-day grace period, a criminal com-
plaint was filed against Garrison in county court, alleging
that Garrison was operating his motor vehicle without proper
registration and proof of insurance. Koenig agreed to represent
Garrison and entered an appearance in the case.
rick Schreiner, the chief deputy county attorney at the
time, was assigned to Garrison’s case. Koenig sent a letter
to Schreiner regarding Garrison’s case stating that the newly
elected Gage County Attorney was in violation of the same
registration law with which Garrison had been charged.
In his letter, Koenig included a photograph of the alleg-
edly expired license plate and a copy of a “Motion to Appoint
Special prosecutor,” which he said he would file if Garrison’s
case was not dismissed. The motion alleged that the “county
attorney is presently in violation of the law, in that his personal
vehicle is not properly registered in Gage County, Nebraska.”
Koenig concluded his letter by stating, “Obviously, these
motions are only proposed. Can’t you dismiss [this case]?
Our lips, of course, are forever sealed if [Garrison’s] case
gets dismissed.”
STATe ex reL. COuNSeL FOr DIS. v. KOeNIG 	205
Cite as 278 Neb. 204

Four days later, Koenig sent a second letter to Schreiner, ask-
ing, “Does this case have any settlement possibility before we
file the enclosures?” enclosed with the letter was a motion to
dismiss for selective prosecution which alleged that the county
attorney, “at least until recently, was operating his motor vehi-
cle without valid registration in Gage County, Nebraska.”
Koenig admitted that he hoped the information regarding the
county attorney’s alleged violation would persuade Schreiner
to dismiss the charges against Garrison. Koenig also stated that
he meant the sealed lips remark only as a joke and thought
Schreiner would realize that Koenig “was trying to inject a
little humor into this [situation].”
The State of Nebraska filed a motion for the appointment
of a special prosecutor in Garrison’s case. The motion was
granted, and a special prosecutor completed the case. Garrison
pled no contest to the expired plate charge, and the no proof
of insurance charge was dismissed. Koenig never filed any of
the motions and never published any information regarding the
county attorney’s vehicle registration.
Three months after the case was closed, formal charges were
filed against Koenig. The formal charges alleged violations
of § 7-104 and Neb. Ct. r. of prof. Cond. §§ 3-503.5(a)(1),
3-504.4(a), and 3-508.4(a), (b), (d), and (e). A referee was
appointed, and a disciplinary hearing was held. The referee
found by clear and convincing evidence that Koenig violated
his oath of office as an attorney as set forth in § 7-104 and
§§ 3-503.5(a)(1) and 3-508.4(a), (b), (d), and (e). The referee
made no finding with respect to § 3-504.4(a), and no excep-
tions were filed in that regard. The referee recommended that
Koenig be suspended from the practice of law for 1 year.
Koenig has been disciplined on two previous occasions. In
1998, Koenig was privately reprimanded for false allegations
and assertions made in the district court for Gage County,
Nebraska. In 2002, we suspended Koenig from the practice
of law for 90 days after he misrepresented the status of estate
proceedings and the legal status of real property.1
1 State ex rel. Counsel for Dis. v. Koenig, 264 Neb. 474, 647 N.W.2d 653
(2002).
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ASSIGNMeNTS OF errOr
Koenig makes five separate assignments of error which can
generally be stated as two: (1) The referee erred in finding that
Koenig violated the Nebraska rules of professional Conduct
and § 7-104 and (2) the referee erred in his recommended sanc-
tion of a 1-year suspension.
STANDArD OF reVIeW
[1,2] 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.2 When
credible evidence is in conflict on material issues of fact, how-
ever, 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.3
ANALYSIS
violatioNS of ruleS of profeSSioNal C oNDuCt
[3] We begin our analysis with whether there is clear and
convincing evidence that Koenig’s actions violated § 3-508.4(a),
(d), or (e). In order to sustain a charge in a lawyer discipline
proceeding, we must find the charge to be established by clear
and convincing evidence.4 Section 3-508.4 deals with attorney
misconduct and provides, in relevant part:
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;
. . . .
(d) engage in conduct that is prejudicial to the adminis-
tration of justice. . . .
(e) state or imply an ability to influence improperly
a government agency or official or to achieve results by
2 State ex rel. Counsel for Dis. v. Wintroub, 277 Neb. 787, 765 N.W.2d 482
(2009).
3 Id.
4 See id.
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Cite as 278 Neb. 204

means that violate the rules of professional Conduct or
other law.
With regard to § 3-508.4(d), we conclude that there is clear
and convincing evidence that Koenig’s conduct was prejudi-
cial to the administration of justice. Koenig contends that the
letters he sent to Schreiner, threatening to reveal the county
attorney’s alleged violation of the law, were an attempt to
negotiate a plea agreement on behalf of his client. We agree
with Koenig that attorneys have the right to negotiate on
behalf of their clients and are even charged by the Nebraska
rules of professional Conduct to zealously assert their client’s
position.5 A lawyer must zealously advocate, however, “under
the rules of the adversary system.”6 While Koenig’s conduct
might be considered zealous advocating of his client’s posi-
tion, it does not fall within the ethical bounds of our adver-
sary system.
A lawyer, for example, can argue to a prosecutor that his
or her client should not be prosecuted for an offense because
“everybody else is doing the same behavior” and no other
prosecutions are occurring. Or, it is even within the bounds
of our ethical rules to argue, that a client should not be pros-
ecuted for something because the prosecutor is allegedly
doing the same prohibited behavior. but it is altogether differ-
ent—and a violation of the rules of professional conduct—to
offer to a prosecutor to stay quiet about something the pros-
ecutor has done (or is doing) in exchange for dismissing a
charge that has been lodged against one’s client. It does not
take a great deal of imagination to see how this type of behav-
ior taints the adversary system and prejudices the administra-
tion of justice.
In this instance, Koenig offered to keep mum about what
he believed to be illegal conduct by the county attorney in
exchange for the dismissal of the charges against Garrison.
Koenig’s actions were, in effect, a conditional threat to dis-
close the county attorney’s alleged violation. This a lawyer
5 Nebraska rules of professional Conduct, preamble ¶ 2.
6 Id.
208 	278 NebrASKA repOrTS

cannot do. And this conduct is not any less egregious because
it occurred in the context of plea negotiations.
Koenig also argues that the letters, at least in part, were an
attempt to “inject a little humor” into the case. In particular,
Koenig points to his statement at the end of his first letter,
“[c]an’t you dismiss [this case]? Our lips, of course, are for-
ever sealed if [Garrison’s] case gets dismissed.” Koenig con-
tends that the statement was meant as a joke and was used in
a “lighthearted, jesting, humorous way.”7 Koenig states that he
“misjudged” Schreiner by attributing to him “more understand-
ing about the nuances of the english language than [Schreiner]
apparently possesses.”8
We do not find Koenig’s claim to be credible. Nor did
the referee, who heard and observed the witnesses. Koenig’s
purported “joke” resulted in the appointment of a special
prosecutor, consistent with the motion Koenig threatened to
file. perhaps Koenig did not actually intend to file any of the
motions he prepared. but a reasonable person in Schreiner’s
position could not help but take Koenig’s threats seriously. No
one—not the county attorney or the Counsel for Discipline
or the referee or the members of this court—has believed
Koenig’s claim that he was only joking. There is clear and
convincing evidence that Koenig’s conduct was prejudicial to
the administration of justice, and we therefore conclude that
Koenig violated § 3-508.4(d).
For similar reasons, we find clear and convincing evidence
that Koenig violated § 3-508.4(e). Section 3-508.4(e) prohib-
its the mere suggestion that a lawyer can or will act to exert
improper influence on a public official through unethical or
unlawful means. based on the record before us, we conclude
that there is clear and convincing evidence that Koenig stated
or implied an ability to improperly influence Schreiner, a pub-
lic official, through unethical means. Inherent in drafting and
sending the letters at issue is the suggestion that Koenig would
act to exert improper influence on Schreiner and the county
7 reply brief for respondent at 3.
8 Id. at 4.
STATe ex reL. COuNSeL FOr DIS. v. KOeNIG 	209
Cite as 278 Neb. 204

attorney through unethical means. Accordingly, we conclude
that Koenig violated § 3-508.4(e). And as for § 3-508.4(a), we
conclude that Koenig violated it by virtue of his violation of
§ 3-508.4(d) and (e).
In addition to our determination that Koenig violated the
Nebraska rules of professional Conduct, we also conclude
that Koenig’s misconduct reflects adversely upon his fitness
to practice law. We therefore determine that there is clear and
convincing evidence that Koenig violated his oath of office as
an attorney under § 7-104.
Finally, we turn to § 3-508.4(b) and whether Koenig com-
mitted a criminal act. Section 3-508.4(b) deals with criminal
acts and provides that it is professional misconduct for a
lawyer to “commit a criminal act that reflects adversely on
the lawyer’s honesty, trustworthiness or fitness as a lawyer
in other respects.” The referee concluded that there was clear
and convincing evidence that Koenig committed attempted
bribery and consequently violated § 3-508.4(b). We conclude,
however, in our review of this particular case, that there was
insufficient evidence to determine whether Koenig committed
a criminal act.
In this case, the State of Nebraska has not brought a charge
of bribery or attempted bribery against Koenig. There has been
no trial or finding by any court that Koenig was guilty of any
crime associated with the misconduct at issue. We decline to
determine or hypothesize whether Koenig’s misconduct in this
case would constitute a criminal act—i.e., an act that is deemed
criminal, beyond a reasonable doubt. For similar reasons, we
also conclude that there is insufficient evidence to show that
Koenig violated § 3-503.5(a) which provides that “[a] law-
yer shall not: (1) seek to influence a judge, juror, prospective
juror or other official by means prohibited by law.” We there-
fore conclude that Koenig did not violate §§ 3-503.5(a)(1)
and 3-508.4(b).
Although there is not clear and convincing evidence to show
that Koenig violated §§ 3-503.5(a)(1) or 3-508.4(b), we never-
theless conclude that Koenig’s conduct adversely reflects on
his fitness to practice law and is subject to discipline under the
Nebraska rules of professional Conduct.
210 	278 NebrASKA repOrTS

D iSCipliNe impoSeD
[4] To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, this court
considers the following factors: (1) the nature of the 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.9
[5-7] With respect to the imposition of attorney discipline in
an individual case, we evaluate each attorney discipline case
in light of its particular facts and circumstances.10 This court
will consider the attorney’s acts both underlying the alleged
misconduct and throughout the proceeding.11 The determina-
tion of an appropriate penalty to be imposed also requires the
consideration of any aggravating or mitigating factors.12
In the present case, we conclude that Koenig’s conduct with
respect to these matters violated several disciplinary rules and
his oath of office as an attorney. As an aggravating factor, we
note that Koenig has been disciplined on two previous occa-
sions. In 1998, Koenig was privately reprimanded for false
allegations and assertions made in the district court for Gage
County. And in 2002, we suspended Koenig from the practice
of law for 90 days after he misrepresented the status of estate
proceedings and the legal status of real property.13 Another
factor weighing against Koenig is his lack of willingness to
take responsibility for his conduct, which he characterizes as
a “joke.” Koenig’s failure to take responsibility for his con-
duct shows not only his disregard for the seriousness of his
9 State ex rel. Counsel for Dis. v. Wickenkamp, 277 Neb. 16, 759 N.W.2d
492 (2009).
10 See State ex rel. Counsel for Dis. v. Riskowski, 272 Neb. 781, 724 N.W.2d
813 (2006).
11 See State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 702
(2009).
12 See id.
13 Koenig, supra note 1.
STATe ex reL. COuNSeL FOr DIS. v. KOeNIG 	211
Cite as 278 Neb. 204

behavior, but also a failure to understand and appreciate the
legal import of his actions.
Finally, we note that mitigating circumstances do exist. The
record shows Koenig’s cooperation during the disciplinary
proceeding, his continuing commitment to the legal profession,
and the lack of evidence of any harm to clients.
based upon a consideration of all of the aggravating and
mitigating circumstances in the present case, we conclude that
Koenig should be and hereby is suspended from the practice of
law for 120 days, effective immediately.
CONCLuSION
It is the judgment of this court that Koenig be suspended
from the practice of law for a period of 120 days, effective
immediately. Koenig shall comply with Neb. Ct. r. § 3-316
and, upon failure to do so, shall be subject to a punishment for
contempt of this court. At the end of the 120-day suspension
period, Koenig may apply to be reinstated to the practice of
law, provided that he has demonstrated his compliance with
§ 3-316 and further provided that the Counsel for Discipline
has not notified this court that Koenig has violated any disci-
plinary rule during his suspension.
JuDgmeNt of SuSpeNSioN.
C oNNolly, J., not participating.
State of NebraSka , appellee , v.
aNDre D. robiNSoN, appellaNt.
769 N.W.2d 366
Filed July 31, 2009. 	No. S-08-433.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Convictions: Evidence: Appeal and Error. regardless of whether the evi-
dence is direct, circumstantial, or a combination thereof, an appellate court, in
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