STATE OF NEBRASKA EX REL. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, RELATOR,
BELL ISLAND, RESPONDENT.
action. Judgment of public reprimand.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch,
and Funke, JJ.
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.
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.
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,
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.
referee was appointed on October 5, 2016. The referee held a
hearing on the formal charges on December 21.
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.
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.
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.
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 ...