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

Supreme Court of Nebraska

September 12, 2014

STATE OF NEBRASKA EX REL. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, RELATOR,
v.
BRENDA J. COUNCIL, RESPONDENT

Page 845

[Copyrighted Material Omitted]

Page 846

Original action.

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

Vince Powers, of Vince Powers & Associates, for respondent.

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

OPINION

Page 847

[289 Neb. 34] PER CURIAM.

I. NATURE OF CASE

The Counsel for Discipline of the Nebraska Supreme Court, relator, brought formal charges against Brenda J. Council, respondent, based on the conduct underlying her convictions for abuse of public records and wire fraud. A court-appointed referee found that respondent had violated her oath of office as an attorney and Neb. Ct. R. of Prof. Cond. § 3-508.4 (misconduct) and recommended that she be suspended from the practice of law for 1 year, followed by 2 years' probation. Relator takes exception to the recommended sanction as being too lenient. We find that because respondent's misconduct involved misappropriation, misrepresentation, the violation of Nebraska law, and abuse of public office, she should be disbarred.

II. FACTS

In 1977, respondent was admitted to practice law in Nebraska. Between 1982 and 2005, she was elected or appointed to various public offices, including the Omaha Board of Education, the Omaha City Council, and the Commission of Industrial Relations. In 2005, respondent went into private practice in Omaha, Nebraska. She maintained this practice at all times relevant to these disciplinary proceedings.

Between 2009 and 2013, respondent served as a state senator for the 11th legislative district. After her initial election, her campaign committee, designated the " Committee to Elect Brenda Council" (campaign committee), remained in existence. The campaign committee had a separate bank account for which respondent held a debit card.

Between January 2010 and July 2012, respondent took out more than $63,000 in cash advances using the campaign [289 Neb. 35] committee's debit card and spent those funds for gambling. She also made various deposits into the campaign committee's account in an attempt to " repay those campaign funds." Respondent did not report the withdrawals or the subsequent deposits on her campaign statements filed with the Nebraska Accountability and Disclosure Commission (NADC).

For failing to report the cash advances and deposits and for filing false reports with the NADC, respondent was charged with two counts of abuse of public records (Class II misdemeanor), pursuant to Neb. Rev. Stat. § 28-911(1)(d) (Reissue 2008). She pled guilty to these charges. The county court found her guilty and ordered her to pay a fine of $500.

In April 2013, relator brought formal charges against respond ent. Relator alleged that respondent's conduct surrounding the misuse of campaign funds violated respondent's oath of office as an attorney and § 3-508.4 (misconduct). Respondent admitted to the charges, but she affirmatively alleged that she had repaid " the majority of the funds" and was " undergoing Counseling for her gambling addictions."

While the disciplinary proceedings were pending, respondent was charged in federal district court with wire fraud, a felony, under 18 U.S.C. § 1343 (2012) for her misuse of campaign funds. Pursuant to a plea agreement, she entered a plea of guilty and was sentenced to 3 years' probation, a $500 fine, and a $100 " felony assessment."

After learning of respondent's conviction for wire fraud, the Committee on Inquiry for the Second Disciplinary District requested that we temporarily suspend respondent from the practice of law in Nebraska pending resolution of the disciplinary proceedings. Respondent voluntarily consented to the entry of an order imposing a temporary suspension, which we entered on September 25, 2013.

Page 848

Respondent consented to and relator filed additional formal charges that made reference to respondent's conviction for wire fraud. As before, relator alleged that respondent's conduct surrounding the misuse of campaign funds violated respondent's oath of office as an attorney and § 3-508.4 (misconduct). Respondent again admitted the allegations.

[289 Neb. 36] On December 18, 2013, a hearing was held before a court-appointed referee. Based on the evidence adduced at the hearing, the referee found that respondent had violated her oath of office as an attorney and § 3-508.4 (misconduct). The referee recommended that respondent be suspended for 1 year, with credit for the length of her temporary suspension. He also recommended that following the period of suspension, respondent should complete 2 years' probation, the terms of which would include yearly audits of her trust account.

The referee explicitly considered and dismissed disbarment as an appropriate sanction for respondent's violations, because (1) her acts of misconduct " have had no impact upon the Respondent's service to the legal profession," (2) she had no prior violations, (3) her actions following the misconduct " mitigate[d] the seriousness of the misconduct," (4) " [s]ociety is addressing the moral grounds of the misconduct," and (5) she is fit to continue practicing law. The referee opined that " we all lose if our sanction prevents the Respondent from serving her clients in her community as an attorney."

III. STANDARD OF REVIEW

A proceeding to discipline an attorney is a trial de novo on the record.[1]

IV. EXCEPTIONS

Neither party takes exception to the referee's factual findings. However, relator takes exception to the referee's recommended sanction.

V. ANALYSIS

The basic issues in a disciplinary proceeding against an attorney are whether we should impose discipline and, if so, the appropriate discipline under the ...


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