State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator.
William E. Gast, respondent.
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.
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.
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.
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.
. Cumulative acts of attorney misconduct are distinguishable
from isolated incidents, therefore justifying more serious
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.
. In evaluating attorney discipline cases, the Nebraska
Supreme Court considers aggravating and mitigating
Neb. 688] 8. ___. The propriety of a sanction must be
considered with reference to the sanctions imposed in prior
action. Judgment of suspension.
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.
NATURE OF CASE
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.
disciplinary proceeding results from Gast's conduct in
the course of litigation in the case State of Florida v.
Countrywide Truck Ins. Agency in the district court for
Douglas County. The case has been appealed to this court
several times since it was originally filed in
1998. 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. 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.
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.
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."
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. 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
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. 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.
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.
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.
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.
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.
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.''
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.
the motion to recuse, Gast sent a letter to Judge Bataillon
and Craig (referred to as "exhibit B"). It said, in
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.
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. 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."
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.
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 ...