State ex rel. Counsel for Dis. v. Kleveland

comply with Neb. Ct. R. § 3-316, and upon failure to do so,
respondent shall be subject to punishment for contempt of this
court. Respondent is directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and § 3-310(P) and Neb. Ct. R. § 3-323(B) within 60
days after an order imposing costs and expenses, if any, is
entered by the court.
Judgment of suspension.
stephan, J., not participating.
State exR el.C ouNSel foR diS. v. klevelaNd 	385
Cite as 278 Neb. 385
state of nebraska ex rel . C ounsel for disCipline of
the nebraska supreme C ourt, relator , v.
Jeanelle s. kleveland, respondent.
770 N.W.2d 645
fileda ugust 21, 2009. 	No. S-09-115.
original action. Judgment of suspension.
heaviCan, 	C.J., 	Wright, 	C onnolly, 	gerrard, 	stephan,
mCC ormaCk, and miller-lerman, JJ.
per C uriam.
iNtRoduCtioN
Respondent, Jeanelle S.k leveland, was admitted to the
practice of law in the State of Nebraska ona pril 30, 1984,
and at all times relevant was engaged in the private practice of
law inl incoln, Nebraska.o nf ebruary 3, 2009, the Counsel
ford iscipline of the Nebraska Supreme Court filed formal
charges against respondent.t he formal charges set forth one
count that included charges that by her conduct occurring prior
to September 1, 2005, respondent violated the following pro-
visions of the Code of Professional Responsibility: Canon 1,
dR 1-102 (misconduct), and Canon 6,d R 6-101 (failing to act
competently), as well as her oath of office as an attorney, Neb.
Rev. Stat. § 7-104 (Reissue 2007).f urther, the charges alleged
that by her conduct occurring after September 1, 2005, respon-
dent violated the following provisions of the Nebraska Rules
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

of Professional Conduct: Neb. Ct. R. of Prof. Cond. §§ 3-501.1
(competence) and 3-508.4 (misconduct), as well as her oath of
office as an attorney, § 7-104.
on June 1, 2009, respondent filed a conditional admission
under Neb. Ct. R. § 3-313 in which she knowingly did not
challenge or contest the facts set forth in the formal charges
and waived all proceedings against her in connection therewith
in exchange for a stated form of consent judgment of discipline
which is 60 days’ suspension.u pon due consideration, the
court approves the conditional admission.
faCtS
in summary, the formal charges stated that ono ctober 24,
2002, respondent filed suit in the district court forl ancaster
County on behalf of Rick Perry pursuant to 42u .S.C. § 1983
(2006). 	Respondent 	named 	as 	defendants 	the 	“Nebraska
department of Corrections” and 14 individual defendants, per-
sonally and in their official capacities.t he petition claimed
that Perry was injured by the defendants’ deliberate indiffer-
ence to his medical needs while he was incarcerated. Perry
sought damages in the amount of $1,000,000.
Prior to filing this lawsuit, respondent had never repre-
sented an individual in a § 1983 action, and the formal charges
claimed that she was not competent to handle the suit without
associating with a lawyer who was competent in this area.
at no time during her representation of Perry did respondent
associate with a lawyer who was competent to handle the case.
the formal charges further allege that prior to filing the suit,
respondent failed to adequately prepare either by research
or by education and was unprepared during the pendency of
the suit.
on November 22, 2002, the defendants appeared by spe-
cial appearances, which were sustained because respondent
had not adequately served defendants.a lso on November 22,
the defendants’ demurrers were sustained and respondent was
given 14 days to file an amended petition. Respondent did not
file an amended petition in 2002 or 2003.
ond ecember 18, 2003, the district court issued an order to
show cause, by January 18, 2004, why Perry’s case should not
386 	278N eBRaSkaR ePoRtS

be dismissed for want of prosecution.o n January 20, respon-
dent filed Perry’s first amended petition and the case was
removed from the dismissal docket.
onf ebruary 11, 2004, thea ttorney General’s office filed a
motion to dismiss as to most of the defendants.a 	hearing on
the motion was held on March 19.o n May 3, 2004, the court
sustained the motion to dismiss and respondent was given 21
days to file a second amended petition.i n its May 3 order, the
court stated that although certain named individuals were sued
in their individual and official capacities, none of the named
individuals had been properly served in their official capaci-
ties, and that therefore, the court dismissed the suit against the
defendants in their official capacities.
Respondent did not file a second amended petition within the
time the court had provided.o nd ecember 14, 2004, the court
issued another order to show cause why Perry’s case should
not be dismissed for want of prosecution.o n January 14, 2005,
respondent filed a second amended petition.o n January 26,
defendants filed a demurrer to the second amended petition.
the demurrer was sustained onf ebruary 4, and respondent was
given 14 days to file a third amended petition. Respondent filed
the third amended petition onf ebruary 18.
on March 2, 2005, the defendants filed a demurrer to
the third amended petition, which demurrer was sustained on
March 28, 2005.i n its order, the court reiterated that Perry’s
petition was dismissed as to all state officials sued in their
official capacities.t he court also dismissed two defendants
because there were no specific allegations of conduct by them
relating to Perry’s injuries, and it dismissed one defendant
because he had not been served within 6 months.
ona pril 19, 2005, thea ttorney General’s office filed a
motion for summary judgment, which was sustained as to all of
the remaining defendants except one, a unit caseworker.t rial
was held on January 10 and 11, 2006.i n its order of May 9,
2006, the court stated that it was clear that the medical care
provided to Perry was deficient but that the deficient care was
not attributable to the unit caseworker, because he was a lay-
person who could not be expected to recognize the seriousness
of Perry’s conditions.
State exR el.C ouNSel foR diS. v. klevelaNd 	387
Cite as 278 Neb. 385

the formal charges allege that throughout the pendency of
the suit, respondent repeatedly neglected the case.
aNalYSiS
Section 3-313 provides in pertinent part:
(B)a t any time after the Clerk has entered af ormal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of thef ormal Charge in exchange for a stated
form of consent judgment of discipline as to all or part of
thef ormal Charge pending against him or her as deter-
mined to be appropriate by the Counsel ford iscipline
or any member appointed to prosecute on behalf of the
Counsel ford iscipline; such conditional admission is
subject to approval by the Court.t he conditional admis-
sion shall include a written statement that the Respondent
knowingly admits or knowingly does not challenge or
contest the truth of the matter or matters conditionally
admitted and waives all proceedings against him or her in
connection therewith.i f a tendered conditional admission
is not finally approved as above provided, it may not be
used as evidence against the Respondent in any way.
Pursuant to § 3-313, and given the conditional admission, we
find that respondent knowingly does not challenge or contest
the formal charges, which we now deem to be established facts,
and we further find that by her conduct prior to September 1,
2005, respondent violatedd R 1-102 andd R 6-101 of the Code
of Professional Responsibility, as well as her oath of office as
an attorney licensed to practice law in the State of Nebraska.
further, by her conduct after September 1, 2005, respondent
violated §§ 3-501.1 and 3-508.4, as well as her oath of office
as an attorney licensed to practice law in the State of Nebraska.
Respondent has waived all additional proceedings against her
in connection herewith, and upon due consideration, the court
approves the conditional admission and enters the orders as
indicated below.
CoNCluSioN
Based on the conditional admission of respondent, the
recommendation 	of 	the 	Counsel 	ford 	iscipline, 	and 	our
388 	278N eBRaSkaR ePoRtS

independent review of the record, we find by clear and con-
vincing evidence that by her conduct prior to September 1,
2005, respondent violatedd R 1-102 andd R 6-101 of the
Code of Professional Responsibility, as well as her oath of
office as an attorney licensed to practice law in the State of
Nebraska.f urther, by her conduct after September 1, 2005,
respondent violated §§ 3-501.1 and 3-508.4, as well as her
oath of office as an attorney licensed to practice law in the
State of Nebraska. Respondent should be, and hereby is, sus-
pended from the practice of law for a period of 60 days, effec-
tive 30 days after the filing of this opinion. Respondent shall
comply with Neb. Ct. R. § 3-316, and upon failure to do so,
she shall be subject to punishment for contempt of this court.
Respondent 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(B) within 60
days after the order imposing costs and expenses, if any, is
entered by the court.
Judgment of suspension.
StetSoN v.S ilveRMaN 	389
Cite as 278 Neb. 389
W.k. stetson, m.d., et al ., relators , v. honorable
brian C. silverman, Judge , distriCt C ourt for
daWes C ounty, nebraska , respondent, and
sharon k. rankin, intervenor .
770 N.W.2d 632
fileda ugust 21, 2009. 	No. S-09-209.
1. Mandamus: Words and Phrases. Mandamus is a law action and is defined as
an extraordinary remedy, not a writ of right.a writ of mandamus is issued to
compel the performance of a purely ministerial act or duty, imposed by law upon
an inferior tribunal, corporation, board, or person.
2. Mandamus.a court issues a writ of mandamus only when (1) the relator has
a clear right to the relief sought, (2) a corresponding clear duty exists for the
respondent to perform the act, and (3) no other plain and adequate remedy is
available in the ordinary course of law.
3. Mandamus: Proof.i n a mandamus action, the relator has the burden of proof
and must show clearly and conclusively that such party is entitled to the particu-
lar remedy sought and that the respondent is legally obligated to act.
4. Mandamus: Pretrial Procedure: Appeal and Error.i n determining whether
mandamus applies to a discovery issue, an appellate court considers whether