State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator.
Lori Anne Ubbinga, respondent.
action. Judgment of suspension.
L. Frobish, Assistant Counsel for Discipline, for relator.
appearance for respondent. Heavican, C.J., Wright,
Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
April 11, 2016, formal charges containing one count were
filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, relator, against Lori Anne Ubbinga,
respondent. Respondent filed an answer to the formal charges
on July 5. A referee was appointed, and the referee held a
hearing on the charges. Respondent did not appear at the
referee filed a report on December 2, 2016. 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);
3-501.3 (diligence); 3-501.4(a) and (b) (communications);
3-501.15(d) [295 Neb. 996] (safekeeping property);
3-501.16(d) (declining or terminating representation);
3-508.1(a) and (b) (bar admission and disciplinary matters);
and 3-508.4(a), (c), and (d) (misconduct). The referee
further found that respondent had violated her oath of office
as an attorney licensed to practice law in the State of
Nebraska. See Neb. Rev. Stat. § 7-104 (Reissue 2012).
With respect to the discipline to be imposed, the referee
recommended a 1-year suspension and that upon reinstatement,
if applied for and accepted, respondent be placed on
monitored probation for a period of 2 years. 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) (rev. 2014) of the disciplinary
rules. We grant the motion for judgment on the pleadings and
impose discipline as indicated below.
was admitted to the practice of law in the State of Nebraska
on September 20, 2001. At all times relevant to these
proceedings, she was engaged in the practice of law in Homer,
April 11, 2016, relator filed formal charges against
respondent. The formal charges contain one count generally
regarding respondent's failure to communicate with a
client and respondent's failure to perform the legal work
for the client for which respondent had been paid. The formal
charges alleged that by her conduct, respondent violated her
oath of office as an attorney and professional conduct rules
§§ 3-501.1; 3-501.3; 3-501.4(a) and (b);
3-501.15(d); 3-501.16(d); 3-508.1(a) and (b); and 3-508.4(a),
(c), and (d).
respondent failed to file an answer or other pleading within
30 days of being served with summons and a copy of the formal
charges, relator filed a motion for judgment on the pleadings
on June 22, 2016. On June 30, respondent sent an email to
relator in which she requested additional time to respond to
the motion and formal charges. Relator responded, [295 Neb.
997] stating that it would not object to respondent's
filing her answer out of time, so long as it was filed by
July 5. On July 5, respondent filed a motion for extension of
time to respond, which this court sustained, and,
accordingly, her answer was filed. In her answer to the
formal charges, respondent admitted some of the factual
allegations and denied others. She denied the violations
alleged in the formal charges.
referee was appointed on August 5, 2016. On August 25,
relator sent a letter to respondent asking to schedule a time
to take her deposition. Respondent did not respond. On August
29, relator left a voicemail message asking respondent to
August 30, 2016, a prehearing conference was held by
telephone with the referee, respondent, and relator. A
progression schedule was established, whereby discovery was
to be completed by October 7 and a hearing was set for
September 8, 2016, relator sent an email to respondent asking
her to advise relator when she would be available for her
deposition. Respondent did not reply. On September 12,
relator left a voicemail message for respondent and sent an
email to respondent stating that relator had scheduled her
deposition for September 22. Respondent did not respond to
the email. Relator placed a followup call to respondent on
September 15 and left a voicemail message.
respondent had failed to respond to relator's emails and
voicemail messages, relator had the sheriff personally serve
a subpoena duces tecum on respondent, which changed the date
of respondent's deposition to September 29, 2016. On
September 26, respondent contacted relator and requested that
the date of the deposition be rescheduled because she had a
funeral to attend on September 29. Relator rescheduled the
deposition for October 4, and respondent's deposition was
taken on October 4.
October 5, 2016, relator and respondent exchanged emails
regarding witnesses, exhibits, and a stipulation of facts.
Relator sent a proposed stipulation of facts for
respondent's [295 Neb. 998] review and consideration.
Respondent did not respond to relator's proposed
stipulation of facts. Respondent sent an email in which she
asked relator if she could send her witness and exhibit lists
at a later date. Respondent did not provide relator or the
referee with respondent's list of witnesses or exhibits
before the hearing.
to the referee's report, on October 25, 2016, at
approximately 6:10 a.m., respondent left a voicemail message
with the referee stating that she was ill and would not be
able to attend the hearing on the formal charges scheduled
for that day. Respondent stated that relator '"could
put on what he needs to put on and that maybe I could submit
something in writing in maybe a week or so.'"
Respondent further stated that the referee could call her.
She did not request a continuance of the hearing.
approximately 7:35 a.m., respondent left a voicemail message
with relator indicating that she was ill and would not be
attending the hearing. According to the referee's report,
respondent stated in the message that she would like a
continuance "but understood that [relator] was ready to
proceed with the hearing and she did not want to interfere
with that so she said go ahead and make your record."
She further stated that she would request permission to
submit something in writing to the referee on a later date.
Respondent did not submit any such writing to the referee.
approximately 8 a.m., the referee called relator and
communicated the content of respondent's voicemail.
Relator stated that he wanted to proceed with the hearing,
and the referee advised relator that he would allow relator
to make his request as to how he wanted to proceed on the
approximately 10 a.m., relator appeared at the hearing with
his witness. Respondent did not appear. Relator stated on the
record that he wished to proceed with the hearing, to offer
exhibits, and to have his witness testify. Relator stated
that he would not object if respondent submitted something in
Neb. 999] At approximately 10:10 a.m., before allowing
relator to put on evidence, the referee called respondent and
left a voicemail message asking her to call him. Respondent
did not return the referee's call. Thereafter, relator
called respondent, but she did not answer. The referee stated
that he would proceed with the hearing on the formal charges.
The hearing was held at approximately 10:30 a.m. on October
25, 2016. Respondent did not appear. At the hearing, relator
offered and the referee received 32 exhibits, and relator
called one witness, respondent's client, to testify.
the hearing was completed, relator rested its case
"[s]ubject to whatever [respondent] does." The
referee did not close the record and stated that as a matter
of due process, he wanted to give respondent some opportunity
to review the record, appear, and testify.
October 26, 2016, the referee filed a posthearing order which
he emailed to respondent and relator. The order stated in
part that copies of the transcript and exhibits received at
the hearing were being sent to respondent and that respondent
would have 10 days to review them. The order further stated
that at the end of the 10 days, the referee would contact the
parties to schedule a date, time, and place for respondent to
appear and present evidence.
November 4, 2016, the referee mailed and emailed to the
parties copies of the transcript and exhibits which had been
received at the hearing. The referee advised that he would
contact the parties on November 14 to schedule a time and
place for respondent to present evidence. On November 14 at
approximately 9 a.m., the referee called respondent at her
home and cell phone numbers. No one answered his call at
respondent's home number; no answering machine picked up.
The referee left a voicemail message on the cell phone number
asking respondent to call back. Respondent did not return the
referee's call. At approximately 9:30 a.m., the referee
called respondent's cell phone and left another message.
At approximately 9:35 a.m., the referee called relator and
advised him [295 Neb. 1000] that respondent had not returned
the referee's calls. Relator then made a motion ...