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State ex rel. v. Gast

Supreme Court of Nebraska

May 19, 2017

State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator.
William E. Gast, respondent.

         1. Disciplinary Proceedings: Appeal and Error. Because attorney discipline cases are original proceedings before the Nebraska Supreme Court, the court reviews a referee's recommendations de novo on the record, reaching a conclusion independent of the referee's findings.

         2. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against an attorney are whether the Nebraska Supreme Court should impose discipline and, if so, the appropriate discipline under the circumstances.

         3. Disciplinary Proceedings: Proof. Violation of a disciplinary rule concerning the practice of law is a ground for discipline, and disciplinary charges against an attorney must be established by clear and convincing evidence.

         4. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender's present or future fitness to continue in the practice of law.

         5. ___ . Cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions.

         6. ___. Responding to disciplinary complaints in an untimely manner and repeatedly ignoring requests for information from the Counsel for Discipline indicate a disrespect for our disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice.

         7. ___ . In evaluating attorney discipline cases, the Nebraska Supreme Court considers aggravating and mitigating circumstances.

         [296 Neb. 688] 8. ___. The propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases.

         Original action. Judgment of suspension.

          Kent L. Frobish, Assistant Counsel for Discipline, for relator.

          William E. Gast, pro se.

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

          Per Curiam.

         I. NATURE OF CASE

         Attorney William E. Gast was charged by the Counsel for Discipline with violating Neb. Ct. R. of Prof. Cond. §§ 3-503.5(a)(1), 3-508.2(a), and 3-508.4(a) and (d), and violating his oath of office as an attorney as set forth in Neb. Rev. Stat. § 7-104 (Reissue 2012). The charges were based on a series of communications sent by Gast to Douglas County District Court Judge Peter C. Bataillon and attorney Robert Craig. We conclude that Gast violated these provisions as charged and order that he be suspended from the practice of law for a period of 1 year, to be followed by a period of 2 years' probation upon reinstatement.


         This disciplinary proceeding results from Gast's conduct in the course of litigation in the case State of Florida v. Countrywide Truck Ins. Agency[1] in the district court for Douglas County. The case has been appealed to this court several times since it was originally filed in 1998.[2] The details of the litigation are summarized: The State of Florida, [296 Neb. 689] Department of Insurance (Florida), was appointed as the receiver of an insolvent Florida insurance company.[3] Florida pursued a claim on behalf of the insolvent company against Countrywide Truck Insurance Agency, Inc. (Countrywide), and its owner David L. Fulkerson, alleging that Fulkerson converted money that was owed to the insolvent company for his personal use. Gast began representing Fulkerson in early 2002. Fulkerson died in 2009, and his widow, Diederike M. Fulkerson (Diederike), who was the executor of his estate, was added as a defendant.

         In the most recent appearance of that case before this court, Gast appealed the district court's order granting Florida $15, 000 in attorney fees as a sanction for a frivolous motion to recuse that he had filed.[4]

         Judge Bataillon had taken over the case from another judge when that judge retired in 2000. Over the long course of the Countrywide litigation, Gast became very dissatisfied with the rulings of Judge Bataillon. He believed that Judge Bataillon made "blatant errors of law."

         In 2004, Judge Bataillon denied Gast's motion for partial summary judgment on what Gast believed was an unsound legal basis and which he believed "made absolutely no sense whatsoever." This led Gast to believe that "something is really wrong here, something is really, really wrong." Gast filed a motion to recuse Judge Bataillon on the basis that one of his prior orders contained errors that could reasonably be believed to be based on either a lack of attention, a lack of ability, a lack of impartiality, or some combination of these reasons. The motion was denied by Judge Bataillon. Thereafter, Gast filed an appeal and a writ of mandamus. The mandamus was denied, and the appeal was dismissed for lack of a final, appealable order.[5] Gast testified at his disciplinary hearing that [296 Neb. 690] after this point, "everything that happened . . . made it appear to me that the outcome was being engineered."

         In 2006, the case was tried, and Gast was convinced the result was "predetermined." At the conclusion of the evidence, Florida moved for a directed verdict, which the district court granted.[6] On appeal, this court reversed the directed verdict, reasoning that the intent to defraud creditors is a factual question that should have been decided by the jury.[7]

         After Fulkerson died in 2009, Florida pursued its claim against his estate in probate court, which denied the claim. After this, Fulkerson's estate was dropped as a defendant in the district court litigation, but Florida continued pursuing its claims against his widow, Diederike.

         The case was retried to the bench and submitted in April 2014. After submitting proposed findings of fact and conclusions of law to the court, Gast sent a "Personal, Private and Confidential Memorandum" to Judge Bataillon and opposing counsel Craig, dated April 15, 2014 (referred to as "exhibit A"). The memorandum insinuated that "personal reasons" were driving Judge Bataillon's actions in the case. It states in part:

I can only speculate as to your personal reasons, but I choose not to. Unfortunately, whatever those might be, they may indeed overwhelm [Diederike's] health. If that happens, how will you feel? Not good, I'm sure.
I have long accepted that I will die without ever knowing the real reason(s) for what has transpired in this matter since I first became involved in early 2002. But I do know that neither I, . . . Fulkerson, nor [Diederike] have ever done anything to deserve the hostility that has prevailed from my very initial involvement. Which, by the way, long predated and actually necessitated the recusal request.
[296 Neb. 691] . . . Consider what it is doing to a very sweet 79-year-old woman who deserves NONE of the emotional and physical damage that this is causing her. Also, how it could impact the integrity and reputation of an otherwise respectable Judgeship. And third, the worsening consequences to [Craig] for the mounting costs to Florida and the [insolvent company's] creditors.
Bottom line, this case is over, and you both know it. The sooner that it is made official, the better it will be for all concerned . . . especially the justice system of this State, for which it has been a "black eye" for years. If it is left to the Supreme Court to do so, it could be very ugly indeed for everyone. Ending it now might allow for some face-saving for all concerned, and for some well-deserved relief for [Diederike], This memorandum was sent about a week after the case was submitted to the court.

         In July 2014, Gast's wife had lunch with the ex-wife of Craig. She told Gast's wife that Craig and Judge Bataillon (then-attorney Bataillon) had been "best buds." According to Gast:

[Craig's ex-wife] related parties, dinner engagements at the Omaha Press Club, and the softball team on which . . . Craig and [then-attorney] Bataillon played. She told me the details, and they would have parties afterwards, and sometimes they would go to bars, and the wives would meet them, and she referred to Bataillon as Pete.

         In August 2014, Gast filed a second motion to recuse Judge Bataillon, citing Neb. Rev. Code of Judicial Conduct § 5-302.4 that "[a] judge shall not permit . . . social . . . interests or relationships to influence the judge's judicial conduct or judgment." The motion also stated:

This Motion is additionally based upon (among other violations) newly-acquired evidence of this Court's lack of "impartiality, " lack of "independence, " and lack of "integrity" (as those terms are defined in the Nebraska [296 Neb. 692] Code of Judicial Conduct) that existed from soon after the Hon. Peter C. Bataillon inherited this action from the Hon. Michael McGill and that has continuously persisted throughout the period of more than twelve years to the very date of this Motion.

         It further alleged that Gast "very recently acquired reliable information that, for a period of at least twenty years prior to the appointment of . . . Judge Bataillon to the Douglas County District Court, a very close personal friendship and continuous social relationship had existed between" Judge Bataillon, Craig, and Craig's cocounsel. The petition alleged that the relationship was never disclosed by Craig or Judge Bataillon and that "the relationship has been improvidently, unethically and continuously concealed by the Hon. Peter C. Bataillon, Craig and [cocounsel] from the time Bataillon inherited this case . . . until the very present day.''

         The specific allegations in the motion to recuse included that then-attorney Bataillon and Craig played on a summer softball team together "for approximately three years in the 1970s or early 1980s, " including socializing after games; attended parties together at the cocounsel's home; and attended dinners at the Omaha Press Club.

         Following the motion to recuse, Gast sent a letter to Judge Bataillon and Craig (referred to as "exhibit B"). It said, in part:

Now that the truth of your pre-suit relationship has been discovered, the Docket Sheet itself demonstrates the "cover-up" quality to each and every successive refusal to disclose it after your initial failure to do so. Check it out yourselves. It actually takes on a crescendo-like appearance on its very face. The lesson about cover-ups is that they usually come undone eventually, and the consequences to those involved always amplify in direct proportion to their pre-discovery duration. This "cover-up" is more than 12 years old!
Judge, your responsibility is obvious and it is immediate. .. . You must now recuse sua sponte. And I trust that
[296 Neb. 693] you will not force me to file the augmented Motion, or to conduct a public hearing on it, or to serve the Subpoenas or to take the Depositions.

         Later in August 2014, the court held a hearing on the motion to recuse. At the hearing, Judge Bataillon said, "The only contact that I had with . . . Craig was probably in the early '80s I played on the same Softball team with him for maybe a year or two. That's it." Craig did not remember being on the same softball team as Judge Bataillon during the late 1970's or early 1980's, but had been told by Craig's cocounsel that Judge Bataillon had "played some" on the team. Judge Bataillon was not persuaded by Gast's claims. He said:

At all times I have upheld the law. At all times I have acted fairly and impartially based upon what the evidence has been, based upon what the facts have been, and things of that nature.
This allegation that I failed to disclose, there was nothing to disclose that - that rises to any level under the judicial ethics or any of the lawyers in this matter. As such, your motion is overruled. In September 2014, Gast sent another letter to Judge Bataillon, urging him to recuse, citing a case from the Missouri Court of Appeals.[8] In this letter, Gast suggested that Judge Bataillon had "badgered" Gast in a previous hearing and Gast "insist[ed]" that Judge Bataillon recuse "at once, for your own sake as much as anything else."

         In October 2014, Gast sent yet another letter to Judge Bataillon (referred to as "exhibit C"), which said, in part:

Judge Bataillon, you should realize that you have an ever-so-brief opportunity to quietly back out of this case on a purely technical ground, i.e. one that is not related to misconduct. Before you elect to pass it [sic] up this chance, I respectfully submit that you think very carefully about your own best interests.
[296 Neb. 694] (Emphasis in original.) In this letter, Gast references an incident in a prior hearing (after the motion to recuse hearing) in which Judge Bataillon disclosed that he, his wife, and her brother were eating dinner at a restaurant and noticed that Craig was also eating in the restaurant. Judge Bataillon's wife went over and greeted Craig. Gast said in the letter that Judge Bataillon, his wife, and his brother-in-law were all material witnesses to the "recusal issue." Gast wrote, "It is also extraordinarily curious that such a meeting with . . . Craig might have occurred purely by chance, at that very time." He went on to say:
Sir, since all of that makes it "material, " my client is entitled to your own sequestered deposition in the event that you refuse to recuse. Moreover, all conceivable means of conventional and electronic communication between yourself and . . . Craig will have to be subpoenaed, in order to learn just how "chance" the . . . [r]estaurant encounter actually was.

         Gast also threatened to depose Judge Bataillon's wife, his brother-in-law, and Craig, "Unless, of course, you recuse now." He concluded, "Sir, I know that you will eventually do the right thing. I just pray that it happens in time ...

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