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

Supreme Court of Nebraska

September 8, 2017

State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator.
v.
Thomas A. Fitch, respondent.

         Original action. Judgment of public reprimand.

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

          PER CURIAM.

         INTRODUCTION

         This case is before the court on the conditional admission filed by Thomas A. Fitch, respondent, on June 7, 2017. The court accepts respondent's conditional admission and enters an order of public reprimand.

         FACTS

         Respondent was admitted to the practice of law in the State of Nebraska on April 29, 1992. At all relevant times, he was engaged in the practice of law in South Sioux City, Nebraska.

         On June 6, 2017, the Counsel for Discipline of the Nebraska Supreme Court filed amended formal charges against respondent. The amended formal charges consist of one count against respondent arising from his conduct in connection with the business of his client in which respondent was a participant. The formal charges state that on September 26, 2007, Doug Peterson met with respondent at respondent's office to review and notarize documents with regard to Peterson's agreement [297 Neb. 706] to purchase real property in Dixon County, Nebraska. An abandoned gravel pit was located on the property, and it was Peterson's intent to reopen the gravel pit as an ongoing sand and gravel mining operation. Prior to September 26, respondent had represented Peterson on several matters. During their September 26 meeting, Peterson informed respondent that he was looking for ways to finance his nascent sand and gravel business.

         Following the meeting, respondent invested in Peterson's sand and gravel business, and brought in a longtime friend as an investor. On February 12, 2008, "Peterson Sand & Gravel, LLC" (LLC) was formed. Respondent prepared all documents for the formation of the LLC. Respondent was one of four members of the LLC.

         Initially, Peterson was elected as the manager of the company to manage the daily affairs of the company. Peterson was elected as president of the LLC, and respondent was elected as the secretary and treasurer. Eventually, Peterson resigned as president of the LLC because of concerns that his prior personal bankruptcy and current financial status might jeopardize the LLC's ability to obtain a Small Business Administration loan. On March 21, 2009, all members of the LLC accepted the resignation of Peterson regarding his membership in the LLC and all offices he held. Peterson continued to serve as the daily operations manager of the LLC through December 2013.

         Despite his previous resignation as president of the LLC, Peterson signed as president of the LLC in a series of six promissory notes and commercial debt modification agreements with a bank in South Sioux City. Respondent also signed each of the loan documents as secretary/treasurer of the LLC. At the time the loan documents were inaccurately signed by Peterson as president and by respondent as secretary/treasurer, respondent knew that Peterson no longer served as president of the LLC. However, respondent failed to inform the bank that Peterson was no longer president of the LLC.

         [297 Neb. 707] The amended formal charges allege that by his omissions, respondent violated his oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond. §§ 3-501.3 (diligence), 3-501.8 (conflict of interest), and 3-508.4 (misconduct).

         On June 7, 2017, respondent filed a conditional admission pursuant to Neb. Ct. R. § 3-313(B) of the disciplinary rules, in which he conditionally admitted that he violated his oath of office as an attorney and professional conduct rules §§ 3-501.3, 3-501.8, and 3-508.4. In the conditional admission, respondent knowingly does not challenge or contest the truth of the matters conditionally asserted and waives all proceedings against him in exchange for a public reprimand.

         The proposed conditional admission included a declaration by the Counsel for Discipline, stating that respondent's proposed discipline is appropriate and consistent with sanctions imposed ...


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