State ex rel. Counsel for Dis. v. Sellers

State of NebraSka ex rel . C ouNSel for D iSCipliNe of
the NebraSka Supreme C ourt, relator , v.
JohN a. SellerS, reSpoNDeNt.
786 N.W.2d 685
Filed August 13, 2010. 	No. S-10-146.
Original action. Judgment of suspension.
heaviCaN, 	C.J., 	Wright, 	C oNNolly, 	gerrarD, 	StephaN,
mCC ormaCk, and miller-lermaN, JJ.
per C uriam.
INTRODUCTION
Respondent, John A. Sellers, was admitted to the practice
of law in the State of Nebraska on September 19, 2000. At all
times relevant, respondent was engaged in the private practice
of law in Grand Island, Nebraska.
Formal charges were filed on February 11, 2010. On June 7,
2010, respondent filed a conditional admission under Neb. Ct.
R. § 3-313 of the disciplinary rules, in which he knowingly did
not challenge or contest the facts set forth in the formal charges
and waived all proceedings against him in connection therewith
in exchange for a stated form of consent judgment of discipline
outlined below. Upon due consideration, the court approves the
conditional admission.
FACTS
In summary, the formal charges state that on August 13,
2008, a client hired respondent to represent him in a child
custody modification case in the district court for Hall County.
The client paid respondent an advance fee of $1,000. The client
had custody of his minor children and was seeking permission
from the court to relocate with his children to Nevada in order
to start a new job.
On September 3, 2008, respondent learned that another
member of his law firm was representing an individual in
a civil suit in which respondent’s client was a defendant.
Respondent informed his client of the conflict and told him that
respondent could “work around it.” Respondent did not get his
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client’s informed consent or the informed consent of the other
client involved in the conflict.
On September 5, 2008, respondent appeared in court for a
pretrial conference regarding his client’s custody modification
case. Trial of the case was set for November 13. The court’s
pretrial order required final witness lists to be filed with the
court and exchanged between the parties by October 10. No
additional witnesses would be permitted to testify except upon
stipulation by the parties or by order of the court.
Respondent failed to prepare and file his witness list by
October 10, 2008. Respondent prepared the witness list on
the day of trial, November 13, and brought the list to trial.
Opposing counsel objected to respondent’s witnesses due to his
failure to comply with the pretrial order. The court sustained
the objection. Respondent requested that the trial be continued.
Respondent’s request was granted; however, the court entered
a temporary order on custody, ruling that respondent’s client
could not remove the children from the State of Nebraska.
In the event the client chose to leave the state to pursue his
employment, the mother of the children would be granted par-
enting time if she so desired. The court directed respondent to
prepare a written order.
After the November 13, 2008, hearing, the client termi-
nated the engagement with respondent. On November 26,
respondent filed a motion to withdraw, which was granted on
December 3.
Respondent told the Counsel for Discipline of the Nebraska
Supreme Court that he prepared the proposed order as directed
by the court and sent the order to opposing counsel. Opposing
counsel did not receive the draft order, and respondent did not
follow up to confirm that the order was filed with the court. The
client made repeated calls to respondent’s office in December
2008 seeking a copy of the order, but respondent did not return
those calls or provide the client with a copy of the order.
On January 9, 2009, the client filed a grievance against
respondent with the Counsel for Discipline. Notice of the
grievance was mailed to respondent’s business address by
certified mail. Respondent was directed to file a written
STATe ex Rel. COUNSel FOR DIS. v. SelleRS 	489
Cite as 280 Neb. 488

response to the grievance within 15 working days. Respondent
failed to respond to the notice, so a second notice was mailed
to respondent by regular U.S. mail on February 25, 2009.
Respondent again failed to respond, so a third notice was
mailed to respondent on March 17. On March 30, respondent
filed a response.
In his response, respondent acknowledged that he had a con-
flict of interest in representing the client. Respondent explained
how he attempted to address the conflict, but acknowledged that
because of that conflict, he was unable to prepare the witness
list in a timely manner. Respondent claimed that he did prepare
the proposed order and sent it to opposing counsel but did not
follow up to determine if the order was filed. Respondent even-
tually submitted the proposed order to opposing counsel and
the court on January 20, 2009.
On July 14, 2009, the Counsel for Discipline sent a letter to
respondent seeking additional information. Respondent again
did not respond to the request, and the Counsel for Discipline
had to contact him three additional times before receiving
a response.
The formal charges state that the foregoing acts and omis-
sions by respondent constitute violations of his oath of office
as an attorney licensed to practice law in the State of Nebraska
as provided by Neb. Rev. Stat. § 7-104 (Reissue 2007) and the
following provisions of the Nebraska Rules of professional
Conduct: Neb. Ct. R. of prof. Cond. §§ 3-501.1 (competence),
3-501.3 (diligence), 3-501.4 (communications), 3-501.7 (con-
flict of interest; current clients), 3-501.10 (imputation of con-
flicts of interest; general rule), and 3-508.4 (misconduct).
ANAlYSIS
Section 3-313 of the disciplinary rules provides in perti-
nent part:
(b) At any time after the Clerk has entered a Formal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of the Formal Charge in exchange for a stated
form of consent judgment of discipline as to all or
part of the Formal Charge pending against him or her
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as determined to be appropriate by the Counsel for
Discipline or any member appointed to prosecute on
behalf of the Counsel for Discipline; such conditional
admission is subject to approval by the Court. The con-
ditional admission shall include a written statement that
the Respondent knowingly admits or knowingly does
not challenge or contest the truth of the matter or mat-
ters conditionally admitted and waives all proceedings
against him or her in connection therewith. If 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 his conditional admission, respondent knowingly
does not challenge the allegations in the formal charges, condi-
tioned on the receipt of the following discipline: that respond-
ent be suspended from the practice of law for 90 days, effective
30 days after the filing of this opinion, and that respondent
pay all costs and expenses related to the prosecution of this
case pursuant to Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and Neb. Ct. R. §§ 3-310(p) and 3-323(b) of the disci-
plinary rules.
pursuant to § 3-313 of the disciplinary rules, 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
respondent violated his oath of office as an attorney licensed to
practice law in the State of Nebraska and §§ 3-501.1, 3-501.3,
3-501.4, 3-501.7, 3-501.10, and 3-508.4 of the rules of profes-
sional conduct.
Respondent has waived all additional proceedings against
him 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 rec-
ommendation of the Counsel for Discipline, and our indepen-
dent review of the record, we find by clear and convincing
evidence that respondent has violated his oath of office as an
STATe ex Rel. COUNSel FOR DIS. v. SelleRS 	491
Cite as 280 Neb. 488

attorney licensed to practice law in the State of Nebraska and
§§ 3-501.1, 3-501.3, 3-501.4, 3-501.7, 3-501.10, and 3-508.4 of
the rules of professional conduct and that respondent should be
and hereby is suspended from the practice of law for 90 days,
effective 30 days after the filing of this opinion. Respondent
shall comply with Neb. Ct. R. § 3-316 of the disciplinary rules,
and upon failure to do so, he shall be subject to punishment
for contempt of this court. Respondent is directed to pay costs
and expenses in accordance with §§ 7-114 and 7-115 of the
Nebraska Revised Statutes and §§ 3-310(p) and 3-323(b) of
the disciplinary rules within 60 days after an order imposing
costs and expenses, if any, is entered by the court.
JuDgmeNt of SuSpeNSioN.
492 	280 NebRASkA RepORTS