State ex rel. Counsel for Dis. v. Bouda

CONCLUSION
Having rejected Banks’ assignments of error, we affirm
Banks’ convictions and sentences for first degree murder and
use of a firearm to commit a felony.
A ffirmed.
H eAvicAn, C.J., not participating.
StAte of nebrASkA ex rel . counSel for diScipline of
tHe nebrASkA Supreme court, relAtor , v.
WilliAm pAul boudA ii, reSpondent.
770 N.W.2d 648
Filed August 21, 2009. 	No. S-08-1204.
Original action. Judgment of suspension.
H eAvicAn, c.J., WrigHt, connolly, gerrArd, mccormAck,
and miller-lermAn, JJ.
per curiAm.
INTRODUCTION
On November 18, 2008, formal charges containing one count
were filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, relator, against respondent, William
Paul Bouda II. Respondent filed an answer to the charges on
February 17, 2009. A referee was appointed on February 25.
On April 1, the referee’s hearing was held on the charges.
Respondent, who was represented by counsel, appeared and
testified. Exhibits were admitted into evidence.
The referee filed a report on May 5, 2009. With respect to
the charges, the referee concluded that respondent’s conduct
had breached 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 alloca-
tion of authority between client and lawyer), § 3-501.3 (dili-
gence), § 3-501.4 (communications), § 3-503.3 (candor toward
tribunal), and § 3-508.4 (misconduct). The referee further
found that respondent had violated his oath of office as an
attorney licensed to practice law in the State of Nebraska. See
380 	278 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

Neb. Rev. Stat. § 7-104 (Reissue 2007). With respect to the
discipline to be imposed, the referee recommended a 3-month
suspension. Neither relator nor respondent filed exceptions to
the referee’s report. Relator filed a motion for judgment on the
pleadings under Neb. Ct. R. § 3-310(L). We grant the motion
for judgment on the pleadings and impose discipline as indi-
cated below.
FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on May 26, 1999. At all times relevant to these
proceedings, he has practiced in Omaha, Nebraska.
The substance of the referee’s findings may be summarized
as follows: The respondent was involved in the private practice
of law from 1999 until 2007, with the dominant focus of his
practice being insurance defense litigation for “AAA Motor
Club” (AAA). As of August 1, 2007, respondent left the private
sector and entered employment at Catholic Mutual Group. Upon
leaving his private practice, respondent made arrangements to
turn over the majority of his AAA defense files to an attor-
ney with Fitzgerald, Schorr, Barmettler & Brennan. However,
respondent retained three files involving rear-end collisions that
he believed warranted settlement. In one of the files respondent
retained, he was defending AAA and Tykeisha Tucker in a suit
filed by Jason Olsen in the district court for Douglas County.
Olsen was represented by attorney Leonard Shefren.
At the referee’s hearing, respondent testified that he had
received notice that the case involving Tucker was set for trial
on April 7, 2008. Respondent stated that he had decided that
the case should be settled because Tucker would not make a
good witness and Tucker had no valid defense. Respondent
admitted that he did not try to contact Tucker as the trial was
approaching. Respondent claimed that he did send e-mails to
Melissa Corbett, his contact person at AAA, about the need
to settle the case, but that he could not produce the e-mails
because they were lost due to a computer virus.
Respondent admitted that he never contacted anyone at
AAA to address the settlement of the suit and that although he
believed he discussed the issue of potentially settling the case
STATE Ex REL. COUNSEL FOR DIS. v. BOUDA 	381
Cite as 278 Neb. 380

with Olsen’s counsel, Shefren, respondent acknowledged that
he talked to Shefren “barely at all until after the trial date.” At
the hearing, respondent admitted that he did not file a motion
to continue the case.
Respondent’s testimony at the referee’s hearing showed that
respondent was not prepared to go to trial and that he did not
have the authority to settle the case. Nevertheless, on April
7, 2008, respondent represented to both Shefren and the dis-
trict court that respondent had the authority to settle the case.
Further, after April 7, respondent continued to inaccurately
represent to Shefren that he had the authority to settle the case.
On June 2, respondent approved a document as to both its form
and content entitled “Joint Stipulation,” which document reit-
erated respondent’s multiple false statements made to Shefren
and the district court. Respondent continued to misstate the
status of the litigation against Tucker in a June 5 e-mail sent to
Gina Smith-Gallant, a claims attorney for AAA.
At the hearing, the Counsel for Discipline indicated that at
all times relevant to this case, respondent had fully cooperated
with the Counsel for Discipline.
In his report filed May 5, 2009, the referee specifically found
by clear and convincing evidence that respondent had violated
the disciplinary rules recited above, as well as his oath of office
as an attorney. The referee also found certain mitigating factors
were present. These included that respondent did not have a
prior record of misconduct, that respondent was experiencing
difficulties in his marriage at the time of his infractions, and
that respondent cooperated with the Counsel for Discipline
during the course of the disciplinary proceedings.
With respect to the sanction to be imposed for the forego-
ing actions, and considering the mitigating factors, the referee
recommended a 3-month suspension.
ANALYSIS
In view of the fact that neither party filed written exceptions
to the referee’s report, relator filed a motion for judgment on
the pleadings under § 3-310(L). When no exceptions are filed,
the Nebraska Supreme Court may consider the referee’s find-
ings final and conclusive. See State ex rel. Counsel for Dis. v.
382 	278 NEBRASkA REPORTS

Davis, 276 Neb. 158, 760 N.W.2d 928 (2008). Based upon the
findings in the referee’s report, which we consider to be final
and conclusive, we conclude that the formal charges are sup-
ported by clear and convincing evidence, and the motion for
judgment on the pleadings is granted.
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 disciplinary rule con-
cerning the practice of law is a ground for discipline. Id.
Based on the record and the undisputed findings 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, 3-503.3, and 3-508.4. The record also supports a find-
ing by clear and convincing evidence that respondent violated
his oath of 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. Wickenkamp,
277 Neb. 16, 759 N.W.2d 492 (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, § 3-310(N).
STATE Ex REL. COUNSEL FOR DIS. v. BOUDA 	383
Cite as 278 Neb. 380

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. Wickenkamp, supra. For purposes of deter-
mining 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.
We have noted that the determination of an appropriate
discipline to be imposed on an attorney requires consideration
of any mitigating factors. See State ex rel. Counsel for Dis. v.
Fellman, 267 Neb. 838, 678 N.W.2d 491 (2004).
The evidence in the present case establishes, among other
facts, that respondent made repeated misrepresentations of
facts to opposing counsel and the district court concerning
his authority to settle a case and failed to effectively commu-
nicate with his clients. As mitigating factors, we note, as did
the referee, that respondent has not been subject to prior dis-
cipline, that he was experiencing personal problems during the
pendency of this action, and that he fully cooperated with the
Counsel for Discipline during the disciplinary proceedings.
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 finds that
respondent should be suspended for 3 months.
CONCLUSION
The motion for judgment on the pleadings is granted. It
is the judgment of this court that respondent should be and
is hereby suspended from the practice of law for a period of
3 months, effective immediately, after which period respon-
dent may apply for reinstatement to the bar. Respondent shall
384 	278 NEBRASkA REPORTS

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 Ex REL. COUNSEL FOR DIS. v. kLEVELAND 	385
Cite as 278 Neb. 385
StAte of nebrASkA ex rel . counSel for diScipline of
tHe nebrASkA Supreme court, relAtor , v.
JeAnelle S. klevelAnd, reSpondent.
770 N.W.2d 645
Filed August 21, 2009. 	No. S-09-115.
Original action. Judgment of suspension.
H eAvicAn, 	c.J., 	WrigHt, 	connolly, 	gerrArd, 	StepHAn,
mccormAck, and miller-lermAn, JJ.
per curiAm.
INTRODUCTION
Respondent, Jeanelle S. kleveland, was admitted to the
practice of law in the State of Nebraska on April 30, 1984,
and at all times relevant was engaged in the private practice of
law in Lincoln, Nebraska. On February 3, 2009, the Counsel
for Discipline of the Nebraska Supreme Court filed formal
charges against respondent. The 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, DR 6-101 (failing to act
competently), as well as her oath of office as an attorney, Neb.
Rev. Stat. § 7-104 (Reissue 2007). Further, the charges alleged
that by her conduct occurring after September 1, 2005, respon-
dent violated the following provisions of the Nebraska Rules