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

Supreme Court of Nebraska

May 5, 2017

STATE OF NEBRASKA EX REL. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, RELATOR,
v.
BELL ISLAND, RESPONDENT.

         Original action. Judgment of public reprimand.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch, and Funke, JJ.

          PER CURIAM.

         INTRODUCTION

         On July 22, 2016, formal charges containing one count were filed by the office of the Counsel for Discipline of the Nebraska Supreme Court, relator, against Bell Island, respondent. Respondent filed an answer to the formal charges on September 19. A referee was appointed, and the referee held a hearing on the charges.

         The referee filed a report on February 6, 2017. 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. §§ 3-503.6 (trial publicity), 3-504.1(a) (truthfulness in statements to others), and 3-508.4(a) and (d) (misconduct). With respect to the discipline to be imposed, the referee recommended a public reprimand. Neither relator nor respondent filed exceptions to the referee's report. The parties filed a joint motion for judgment on the pleadings under Neb. Ct. R. [296 Neb. 625] § 3-310(L) (rev. 2014) of the disciplinary rules. We grant the motion for judgment on the pleadings and impose discipline as indicated below.

         STATEMENT OF FACTS

         Respondent was admitted to the practice of law in the State of Nebraska on September 22, 1994. At all times relevant to these proceedings, he was engaged in the practice of law in Gering, Nebraska.

         On July 22, 2016, relator filed formal charges against respondent. The formal charges contain one count generally regarding respondent's statements to the press regarding his client's refusal to testify at a murder trial. The formal charges alleged that by his conduct, respondent violated his oath of office as an attorney pursuant to Neb. Rev. Stat. § 7-104 (Reissue 2012) and Neb. Ct. R. of Prof. Cond. § 3-504.4(a) (respect for rights of third persons), as well as professional conduct rules §§ 3-503.6(a), 3-504.1(a), and 3-508.4(a), (c), and (d). On September 19, respondent filed his answer to the formal charges, generally denying the allegations set forth in the formal charges.

         A referee was appointed on October 5, 2016. The referee held a hearing on the formal charges on December 21.

         After the hearing, the referee filed his report and recommendation on February 6, 2017. The substance of the referee's findings may be summarized as follows: In July 2008, a 2-year-old child was murdered in her home in Scotts Bluff County. At the time she was murdered, the only adults present in the home were the child's mother, who became respondent's client; the client's boyfriend, Dustin Chauncey; and their friend. A law enforcement investigation ensued, but no criminal charges were filed at that time. During the investigation, in late 2008 or early 2009, respondent began representing the client. Prior to respondent's involvement, the client had given several inconsistent statements to law enforcement regarding the events that occurred on the night that her child was [296 Neb. 626] murdered, but after respondent became involved, the client gave no further statements to law enforcement.

         Following pressure from the community, the district court for Scotts Bluff County appointed James Zimmerman to conduct a grand jury. The court appointed Zimmerman from outside the Scotts Bluff County Attorney's office in order to alleviate community concerns that the county attorney had not brought criminal charges. The grand jury convened and returned an indictment against Chauncey for intentional child abuse resulting in death, a Class IB felony. The grand jury also indicted the client as an accessory after the fact in the death of her child, a Class IV felony. The charges against the client were dismissed because the statute of limitations had run. The charges against Chauncey proceeded to trial.

         Chauncey's trial commenced on February 23, 2015. Zimmerman wanted the client to testify. On February 24, Zimmerman sent respondent an email containing an outline of the questions which Zimmerman intended to ask the client during his direct examination of her. Respondent did not respond to Zimmerman's email. The client invoked her Fifth Amendment right to remain silent, and Zimmerman moved to grant the client immunity regarding her testimony. The court ordered that the client give her testimony and that if she refused, she would be held in contempt of court. After conferring with respondent, the client refused to testify, and she was held in contempt of court by an order filed February 24. On February 25, the client was brought back before the court. She again indicated that she was refusing to testify, and she continued to be held in contempt of court.

         During the trial on February 25, 2015, Zimmerman learned that a press release had been issued to a local radio station. The press release had been issued at ...


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