State ex rel. Counsel for Dis. v. Loftus

State of NebraSka ex rel . C ouNSel for D iSCipliNe of
the NebraSka Supreme C ourt, relator , v.
D oNalD J. loftuS, reSpoNDeNt.
775 N.W.2d 426
Filed December 4, 2009. 	No. S-08-1330.
1. Disciplinary Proceedings: States: Proof. In a reciprocal discipline proceeding, a
judicial determination of attorney misconduct in one jurisdiction is generally con-
clusive proof of guilt and is not subject to relitigation in the second jurisdiction.
2. Disciplinary Proceedings. With respect to the type of attorney discipline that is
appropriate, the Nebraska Supreme Court evaluates each case individually in light
of the particular facts and circumstances of that case.
3. ____. Neb. Ct. R. § 3-304 provides that the following may be considered by the
Nebraska Supreme Court as sanctions for attorney misconduct: (1) disbarment;
(2) suspension for a fixed period of time; (3) probation in lieu of or subsequent to
suspension, on such terms as the court may designate; (4) censure and reprimand;
(5) temporary suspension; or (6) private reprimand.
4. ____. For the purpose of determining the proper discipline of an attorney, the
Nebraska Supreme Court considers the attorney’s acts both underlying the events
of the case and throughout the proceeding.
Original action. Judgment of suspension.
John 	W. 	Steele, 	Assistant 	Counsel 	for 	Discipline, 	for
relator.
Donald J. Loftus, pro se.
heaviCaN, C.J., Wright, gerrarD, StephaN, mCC ormaCk ,
and miller-lermaN, JJ.
per C uriam.
NATURE OF CASE
The Counsel for Discipline of the Nebraska Supreme Court,
relator, has filed a motion for reciprocal discipline against
Donald J. Loftus, respondent.
FACTS
Loftus was admitted to the practice of law in Nebraska in
1973 and in California in 1990. He was on inactive status
with the Nebraska State Bar Association until June 19, 2009,
when he was suspended for nonpayment of dues. There is no
evidence that Loftus has been disciplined in either state before
this case.
STATE Ex REL. COUNSEL FOR DIS. v. LOFTUS 	1015
Cite as 278 Neb. 1015
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

On November 7, 2007, the Review Department of the State
Bar Court of California (Review Department) determined that
Loftus was culpable of moral turpitude and therefore had
violated California Business and Professions Code § 6106,
because he instigated a conversation with an adverse party
under false pretenses, secretly recorded it, and then lied about it
and concealed it during litigation. It also concluded that Loftus
harassed or embarrassed a juror in violation of California Rules
of Professional Conduct § 5-320(D).
In accordance with the recommendation of the Review
Department, 	on 	October 	1, 	2008, 	the 	Supreme 	Court 	of
California suspended Loftus from the practice of law for 1
year, stayed except for the first 90 days, and placed him on
probation for 18 months. The court also ordered Loftus to
attend and successfully complete California’s State Bar Ethics
School, take and pass the Multistate Professional Responsibility
Examination, and meet other conditions.
The Counsel for Discipline of the Nebraska Supreme Court
filed a motion for reciprocal discipline on December 24, 2008.
On January 14, 2009, we entered an order directing the par-
ties to show cause as to why this court should or should
not enter an order imposing identical discipline, or greater
or lesser discipline, as the court deemed appropriate. Loftus
responded, claiming that he was denied due process in the
California proceedings.
ANALYSIS
[1] The issues in a disciplinary proceeding against a lawyer
are whether this court should impose discipline and, if so, the
type of discipline appropriate under the circumstances.1 In a
reciprocal discipline proceeding, “‘“a judicial determination of
attorney misconduct in one jurisdiction is generally conclusive
proof of guilt and is not subject to relitigation in the second
jurisdiction.”’”2 Based on the findings of the Supreme Court
1 State ex rel. Counsel for Dis. v. Boose, 277 Neb. 1, 759 N.W.2d 110
(2009).
2 Id. at 4, 759 N.W.2d at 112-13.
1016 	278 NEBRASkA REPORTS

of California, we conclude that misconduct occurred and that
disciplinary measures are appropriate in this case.
[2-4] With respect to the type of attorney discipline that is
appropriate, we evaluate each case individually in light of the
particular facts and circumstances of that case.3 Neb. Ct. R.
§ 3-304 provides that the following may be considered by the
court as sanctions for attorney misconduct: (1) disbarment; (2)
suspension for a fixed period of time; (3) probation in lieu of
or subsequent to suspension, on such terms as the court may
designate; (4) censure and reprimand; (5) temporary suspen-
sion; or (6) private reprimand.4 For the purpose of determin-
ing the proper discipline of an attorney, this court considers
the attorney’s acts both underlying the events of the case and
throughout the proceeding.5 We apply these factors to the
instant reciprocal discipline case.
After considering the facts and circumstances of this case,
the Supreme Court of California determined that a 1-year
suspension, stayed except for the first 90 days of actual sus-
pension, sufficiently protected the interests of the citizens of
California. We conclude that a 90-day suspension would like-
wise protect the citizens of Nebraska.
Loftus’ license to practice law in Nebraska is currently under
nondisciplinary suspension for nonpayment of annual dues
and fees. Pursuant to Neb. Ct. R. § 3-803(E), a member of the
Nebraska State Bar Association suspended for nonpayment of
dues and/or assessments is eligible to be reinstated if he or
she pays all dues and assessments in arrears. As we noted in
State ex rel. NSBA v. Flores,6 in order for attorney discipline
to have meaning, it must be added to the nondisciplinary sus-
pension. Accordingly, Loftus will not be eligible for reinstate-
ment until 90 days after he has paid all delinquent dues and
assessments owed to the Nebraska State Bar Association and
3 See State ex rel. Counsel for Dis. v. Wickenkamp, 277 Neb. 16, 759 N.W.2d
492 (2009).
4 State ex rel. Counsel for Dis. v. Wadman, 275 Neb. 357, 746 N.W.2d 681
(2008).
5 Id.
6 State ex rel. NSBA v. Flores, 261 Neb. 256, 622 N.W.2d 632 (2001).
STATE Ex REL. COUNSEL FOR DIS. v. LOFTUS 	1017
Cite as 278 Neb. 1015

has shown that he has successfully completed California’s State
Bar Ethics School, taken and passed the Multistate Professional
Responsibility Examination, and shown that he has complied
and is complying with his term of probation and other condi-
tions imposed by California.
CONCLUSION
The motion for reciprocal discipline is granted. It is the
judgment of this court that Loftus should be and is suspended
from the practice of law for a period of 90 days immediately
following the date when he becomes otherwise eligible for
reinstatement from his current nondisciplinary suspension for
nonpayment of dues and assessments.
Loftus shall comply with Neb. Ct. R. § 3-316, and upon
failure to do so, he shall be subject to punishment for contempt
of this court. He 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 an order imposing costs and expenses, if any, is
entered by this court.
JuDgmeNt of SuSpeNSioN.
C oNNolly, J., not participating.
Shari miller , appellee , v. SChool D iStriCt No. 18-0011
of C lay C ouNty, NebraSka , alSo kNoWN aS harvarD
publiC SChoolS, a politiCal SubDiviSioN of
the State of NebraSka , appellaNt.
775 N.W.2d 413
Filed December 4, 2009. 	No. S-09-016.
1. Schools and School Districts: Termination of Employment: Teacher
Contracts: Evidence: Appeal and Error. The standard of review in a proceed-
ing in error from an order of a school board terminating the contract of a tenured
teacher is whether the school board acted within its jurisdiction and whether there
is sufficient evidence as a matter of law to support its decision.
2. Schools and School Districts: Evidence. The evidence presented to a school
board is sufficient as a matter of law if the school board could reasonably find the
facts as it did on the basis of the testimony and exhibits contained in the record
before it.
1018 	278 NEBRASkA REPORTS