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State ex rel. Counsel for Discipline of Nebraska Supreme Court v. Pivovar

Supreme Court of Nebraska

May 23, 2014

STATE OF NEBRASKA EX REL. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, RELATOR,
v.
GREGORY A. PIVOVAR, RESPONDENT

Original action.

JUDGMENT OF SUSPENSION.

John W. Steele, Assistant Counsel for Discipline, for relator.

D.C. " Woody" Bradford III, of Bradford & Coenen, L.L.C., for respondent.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MILLER-LERMAN, and CASSEL, JJ. MCCORMACK, J., not participating.

OPINION

Page 656

Per Curiam.

I. NATURE OF CASE

The issue presented is what discipline should be imposed on Gregory A. Pivovar, respondent, for his violation of certain provisions of the Nebraska Rules of Professional Conduct and his oath of office as an attorney. Judgment was previously entered on the pleadings as to the facts. Briefing and oral argument were ordered on the issue of discipline.

Upon consideration, we adopt the referee's recommendation of a 45-day suspension followed by 2 years of monitored probation.

II. FACTS

On September 12, 1979, respondent was admitted to practice law in Nebraska. He has received four previous private reprimands.

[288 Neb. 187] The instant disciplinary proceedings relate to formal charges filed on December 12, 2012, by the Counsel for Discipline of the Nebraska Supreme Court, relator. In these charges, relator alleged that certain acts of respondent during his representation of Danny Robinson violated respondent's oath of office as an attorney and Neb. Ct. R. of Prof. Cond. § § 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (communications), and 3-508.4 (misconduct). Respondent admitted certain allegations, but he denied that he had violated his oath of office or any of the Nebraska Rules of Professional Conduct.

On August 16, 2013, a hearing was held before a court-appointed referee. Based on the evidence adduced at the hearing, the referee filed a report.

The referee's findings may be summarized as follows: In March 2008, respondent was appointed to represent Robinson on a motion for postconviction relief from Robinson's first degree murder conviction. Respondent represented Robinson at an evidentiary hearing on the motion for postconviction relief.

The district court denied Robinson's motion, and respondent sent a letter to Robinson informing him of that decision. Respondent advised Robinson that respondent

Page 657

would need to be reappointed before respondent could represent Robinson on appeal. Respondent enclosed an application to proceed in forma pauperis and the necessary poverty affidavit. However, respond ent did not include a notice of appeal or advise Robinson that there were only 30 days to file an appeal (until March 19, 2010). Robinson later sent the district court a letter requesting the reappointment of respondent for purposes of appeal and the application to proceed in forma pauperis with the necessary poverty affidavit.

On March 18, 2010, the district court granted Robinson's application to proceed in forma pauperis and appointed respondent as counsel on appeal. On March 22, respondent received notice of the appointment. The following day, upon reviewing Robinson's file, respondent discovered that no notice of appeal had been filed.

[288 Neb. 188] Respondent testified that after he discovered that there was no appeal, he " '" [s]tuck [his] head in the sand." '" He did not contact the district court to discuss the fact that he had not received notice of his appointment until after the deadline for filing an appeal had passed. Respondent researched the problem but " 'did nothing more.'" At the hearing before the referee, respondent testified that he " '" [a]bsolutely" '" should have done more to resolve the problem.

In the months following respondent's appointment to serve as Robinson's appellate counsel, Robinson made " 'numerous attempts'" to contact respondent by telephone and letter. Respondent did not answer " '[m]ost'" of these communications. Respondent testified he told Robinson that he was " '" working on whether [Robinson] had an appeal or not." '" However, Robinson testified that respondent said he was working on writing the appellate brief. The referee determined that respondent waited until November 27, 2010, to inform Robinson that an appeal had not been timely filed.

The referee concluded there was " 'no dispute that the respondent " put his head in the sand" and failed to communicate with . . . Robinson.'" The referee noted that the main problem was the lack of communication with Robinson, not the missed opportunity to appeal. The referee explained that " even though the appeal time was apparently blown in the first instance, subsequently, . . . Robinson's appeal was permitted and the appeal was properly docketed."

The referee found by clear and convincing evidence that respondent had failed to (1) competently represent Robinson, (2) act with reasonable diligence, and (3) properly communicate with Robinson. The referee determined that respondent had engaged in conduct prejudicial to the administration of justice. Thus, the referee concluded that respondent had violated his oath of office as an attorney and § § 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (communications), and 3-508.4 (misconduct).

The referee recommended discipline in the form of a 45-day suspension followed by 2 years of probation with a practice monitor. The referee took into account respondent's four prior private reprimands arising from five separate complaints. [288 Neb. 189] The referee also considered the " overwhelming showing of support" for respondent by members of the legal community and the fact that respondent was cooperative and " generally remorseful."

No exceptions were taken by either party to the referee's report. As such, pursuant to Neb. Ct. R. ยง 3-310(L), the relator moved for judgment on the pleadings and asked this court to ...


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