State ex rel. Counsel for Dis. v. Gilner

confirmation. The district court overruled McEwin’s objection
and confirmed the sale based solely upon its determination that
McEwin’s lien had lapsed, with no mention of the other issues
she raised. Because McEwin was not given an opportunity to
be heard regarding her objections unrelated to her claimed lien,
we conclude that the district court abused its discretion in con-
firming the sale.
CONCLUSION
We 	affirm 	the 	determination 	of 	the 	district 	court 	that
McEwin’s child support lien had lapsed by operation of
§ 42-371(5) because there had been no execution on her
child support judgment within the prescribed time period. But
because she was not given an opportunity to be heard as to her
other objections to confirmation of the sale, and the district
court apparently did not consider her objections, we reverse the
order confirming the sale and remand for further proceedings
consistent with this opinion.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
stAte of nebrAskA ex rel . counsel for discipline
of the nebrAskA supreme court, relAtor ,
v. WilliAm d. gilner , respondent.
783 N.W.2d 790
Filed June 25, 2010. 	No. S-06-963.
Original action. Judgment of suspension.
Kent 	L. 	Frobish, 	Assistant 	Counsel 	for 	Discipline, 	for
relator.
Amy Sherman Geren for respondent.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck , and miller-lermAn, JJ.
82 	280 NEBrASKA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

per curiAm.
INTrODUCTION
On September 1, 2006, the chairperson of the Committee
on Inquiry of the Second Disciplinary District of the Nebraska
State Bar Association filed an application to temporarily sus-
pend William D. Gilner, respondent, until final disposition
of the pending disciplinary proceedings. This court granted
the application on September 27 and suspended respondent’s
license to practice law until further order of the court.
On March 9, 2007, the office of the Counsel for Discipline
of the Nebraska Supreme Court, relator, filed formal charges
against respondent. The matter was referred to a referee, and
a hearing was held on July 11. The referee filed a report and
recommendation on September 10. In the referee’s report,
with respect to the formal charges, the referee concluded that
respondent’s conduct had violated the following provisions
of the Nebraska rules of professional Conduct: Neb. Ct. r.
of prof. Cond. §§ 3-501.1 (competence), 3-501.2 (scope of
representation and allocation of authority between client and
lawyer), 3-501.3 (diligence), 3-501.4 (communications), and
3-508.4 (misconduct). The referee recommended that respond-
ent be suspended from the practice of law for a period of 2
years and that upon reinstatement, respondent should be placed
on a period of probation and strictly monitored by another
licensed Nebraska attorney for not less than 2 years.
No objections to the referee’s report were filed. On September
26, 2007, this court accepted the findings of fact as set forth in
the report of the referee and set the matter for oral argument
limited to the issue of discipline. This court heard oral argu-
ment as to the appropriate discipline on March 5, 2008.
After hearing argument on March 5, 2008, this court entered
an order staying the matter and referred the matter as one
possibly involving a disability to the Counsel for Discipline
for consideration under what is now codified as Neb. Ct. r.
§ 3-311. On May 22, this court granted the application of the
Committee on Inquiry of the Second Disciplinary District and
ordered that respondent be placed on disability status pursu-
ant to § 3-311(D). The court further ordered that all pending
STATE Ex rEL. COUNSEL FOr DIS. v. GILNEr 	83
Cite as 280 Neb. 82

proceedings in this case should be held in abeyance until fur-
ther order of this court.
On March 10, 2010, this court removed respondent’s disabil-
ity status and removed the stay on the proceedings. Both par-
ties filed briefs regarding appropriate discipline to be imposed.
respondent seeks to be reinstated. On May 5, this court deter-
mined no further oral argument was needed.
FACTS
The referee’s hearing in this case was held on July 11, 2007.
respondent did not appear at the hearing, nor did any attorney
appear on behalf of respondent. Instead, respondent faxed a
letter to the referee the day before the hearing, which letter
was included as part of the record as exhibit 12. A total of 12
exhibits were admitted into evidence at the hearing. relator
called no witnesses. At the request of respondent after the
hearing, two additional letters of reference were received by
the referee and marked as exhibits 13 and 14. Each was written
by a trial judge familiar with respondent’s work and favorable
to respondent.
The substance of the referee’s findings may be summa-
rized as follows: respondent was licensed to practice law in
the State of Nebraska in early 2001. At all times relevant,
respondent was engaged in the private practice of law and was
associated with the Omaha law firm of Nolan, Olson, Hansen,
Lautenbaugh & Buckley, LLp (Nolan, Olson).
The allegations that formed the basis for count I of the
formal charges filed by the relator are as follows: On June
28, 2006, the office of the Counsel for Discipline received a
letter dated June 22, 2006, from attorney Melvin C. Hansen
of the Nolan, Olson law firm. In the letter, Hansen stated
that respondent had represented reliaster Life Insurance Co.
(reliaster), a defendant in a case pending in the U.S. District
Court for the District of Nebraska. Through negotiations,
the parties reached a settlement agreement in 2005, whereby
reliaster would pay the plaintiff the sum of $110,000. The par-
ties notified the court of the settlement but failed to reduce the
settlement agreement to a written stipulation to be filed with
the court. Eventually, on February 1, 2006, the court entered
84 	280 NEBrASKA rEpOrTS

an order directing that the settlement be paid by February 6, or
reliaster would be required to pay $250 per day to the plain-
tiff until the settlement was paid. respondent failed to inform
his client of this order.
On March 16, 2006, the plaintiff filed a motion to enforce
the settlement agreement and the court’s order of February 1.
respondent again failed to inform his client of this motion. On
May 11, the court entered a judgment against reliaster and in
favor of the plaintiff. respondent did not inform his client of
this judgment. reliaster learned of the judgment for the first
time on May 23. reliaster paid the $110,000 judgment on
or about June 2. The sanction that had accrued amounted to
$34,130.50; reliaster paid the sanction. respondent’s employ-
ment with the Nolan, Olson law firm was terminated on
June 16.
The allegations that formed the basis for count II of the
formal charges are as follows: On August 8, 2006, the office
of the Counsel for Discipline received a second letter, dated
July 18, 2006, from attorney Hansen which again pertained
to respondent. In that letter, Hansen alleged that respondent
had represented a client in a workers’ compensation case that
went to trial on August 25, 2005. On December 2, an award
was filed by the compensation court. respondent timely filed
an appeal on December 16. However, respondent had not
informed his client that an award had been entered and did
not have the client’s consent to file the appeal. On March
24, 2006, respondent sent a letter informing his client that
the Workers’ Compensation Court had entered its order on
March 20, rather than the correct date of December 2, 2005.
respondent included with his letter a purported copy of the
award in which the date had been altered to reflect March
20. respondent did not file a brief and did not appear at the
appeal, which was held on April 24.
The formal charges also contained a third count. However,
this count was dismissed at the hearing conducted by the ref-
eree on July 11, 2007.
Based upon the evidence offered during the hearing, the ref-
eree found by clear and convincing evidence that respondent’s
actions constituted a violation of the following provisions
STATE Ex rEL. COUNSEL FOr DIS. v. GILNEr 	85
Cite as 280 Neb. 82

of the Nebraska rules of professional Conduct: §§ 3-501.1,
3-501.2, 3-501.3, 3-501.4, and 3-508.4.
In addressing what discipline should be imposed upon
respondent, the referee noted that respondent did not appear
at the hearing and that the referee was therefore unable to
find any mitigating factors. The referee noted that he found
this disconcerting as he was unable to ascertain whether these
were two isolated incidents or “a character flaw or defect that
is likely to occur in the future.” However, because both rela-
tor and respondent agreed that suspension would be a suitable
discipline, the referee recommended a 2-year suspension as
the appropriate discipline. The referee further recommended
that when respondent regains his license to practice law, he
should be put under a period of probation and strictly moni-
tored by another licensed Nebraska attorney for not less than
2 years. Neither party filed exceptions to the referee’s report
and recommendation.
ANALYSIS
When no exceptions are filed, the Nebraska Supreme Court
may consider the referee’s findings final and conclusive. See
State ex rel. Counsel for Dis. v. Davis, 276 Neb. 158, 760
N.W.2d 928 (2008). This court entered an order in which we
determined that the findings of fact set forth in the referee’s
report were deemed established and that therefore, the sole
remaining issue before this court was the nature and extent of
discipline. A proceeding to discipline an attorney is a trial de
novo on the record. Id. To sustain a charge in a disciplinary
proceeding against an attorney, a charge must be established
by clear and convincing evidence. Id. Violation of a discipli-
nary rule concerning the practice of law is a ground for disci-
pline. Id.
Based on the record and the findings of fact of the referee,
we find that the above-referenced facts have been established
by clear and convincing evidence. Based on the foregoing
evidence, we conclude that by virtue of respondent’s conduct,
respondent has violated §§ 3-501.1, 3-501.2, 3-501.3, 3-501.4,
and 3-508.4. The record also supports a finding by clear
and convincing evidence that respondent violated his oath of
86 	280 NEBrASKA rEpOrTS

office as an attorney, and we find that respondent has violated
said oath.
We have stated that the basic issues in a disciplinary pro-
ceeding against a lawyer are whether discipline should be
imposed and, if so, the type of discipline appropriate under
the circumstances. State ex rel. Counsel for Dis. v. Bouda,
278 Neb. 380, 770 N.W.2d 648 (2009). Neb. Ct. r. § 3-304
provides 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; or
(5) Temporary suspension by the Court; or
(6) private reprimand by the Committee on Inquiry or
Disciplinary review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
See, also, Neb. Ct. r. § 3-310(N).
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. State ex rel.
Counsel for Dis. v. Bouda, supra. For purposes 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. Id.
To determine whether and to what extent discipline should
be imposed in an attorney 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. Id.
The evidence in the present case establishes, among other
facts, that respondent neglected legal matters entrusted to him
by his client, that respondent engaged in conduct which resulted
STATE Ex rEL. COUNSEL FOr DIS. v. GILNEr 	87
Cite as 280 Neb. 82

in his client’s incurring $34,130.50 in sanctions, and that
respondent was dishonest when he apparently altered the date
of an order issued by the Workers’ Compensation Court.
We have considered the record, the findings which have
been established by clear and convincing evidence, and the
applicable law. Upon due consideration, the court concludes
that respondent should be suspended for 2 years dating back
to the date of his temporary suspension, September 27, 2006.
The court further concludes that upon reinstatement, respond-
ent shall be on probation for a period of 2 years under
the supervision of another attorney licensed in the State of
Nebraska. Accordingly, because respondent satisfied his dis-
cipline of a 2-year suspension as of September 27, 2008, we
prospectively grant his application for reinstatement, upon the
condition that he pay the costs associated with these proceed-
ings. Upon reinstatement, respondent shall be placed under
the supervision of attorney Amy Sherman Geren for a period
of 2 years.
CONCLUSION
It is the judgment of this court that respondent should be
and is hereby suspended from the practice of law for a period
of 2 years retroactive from the date respondent was temporar-
ily suspended, September 27, 2006. respondent satisfied his
discipline of a 2-year suspension as of September 27, 2008.
We direct respondent to pay costs and expenses in accordance
with Neb. rev. Stat. §§ 7-114 and 7-115 (reissue 2007),
§ 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
this court. Upon payment of his costs owed in association with
these proceedings, respondent is prospectively reinstated to the
practice of law. Upon reinstatement, respondent shall be under
the supervision of Geren for a period of 2 years.
Judgment of suspension.
88 	280 NEBrASKA rEpOrTS