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

Supreme Court of Nebraska

November 9, 2017

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

         1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de novo on the record.

         2. __ . The Nebraska Supreme Court evaluates each attorney discipline case in light of its particular facts and circumstances.

         3. __ .To determine whether and to what extent discipline should be imposed in an attorney 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.

         4. __ . For purposes of determining the proper discipline of an attorney, the Nebraska Supreme Court considers the attorney's acts both underlying the events of the case and throughout the proceeding, as well as all aggravating or mitigating factors.

         5. __. The propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases.

         6. Judgments: Records: Judicial Notice. A court has the right to examine its own records and take judicial notice of its own proceedings and judgments in a former action.

         7. Disciplinary Proceedings. Responding to disciplinary complaints in an untimely manner and repeatedly ignoring requests for information from the Counsel for Discipline indicate a disrespect for the Nebraska Supreme Court's disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice.

          [298 Neb. 204] 8. __ . An attorney's failure to respond to inquiries and requests for information from the Counsel for Discipline is an important matter and is a threat to the credibility of attorney disciplinary proceedings. The failure to respond to formal charges in the Nebraska Supreme Court is of even greater moment.

         Original action. Judgment of suspension.

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

          No appearance for respondent.

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

          Per Curiam.

         INTRODUCTION

         This original proceeding arises from formal charges filed by the Counsel for Discipline (Relator) against attorney William E. Gast. Relator alleges violations of the Nebraska Rules of Professional Conduct and Gast's oath of office as an attorney arising from (1) the unauthorized practice of law and (2) frivolous pleadings. We granted Relator's motion for judgment on the pleadings pursuant to Neb. Ct. R. § 3-310(1) (rev. 2014), and the facts alleged in the formal charges are deemed admitted. Thus, the only issue we must determine is the appropriate discipline to be imposed. Given the facts and circumstances of this case, we adopt Relator's recommended sanction of an indefinite period of suspension of at least 1 year, with reinstatement conditioned on Gast's demonstrating his fitness to practice law and addressing the circumstances of the instant violations. Such sanction shall run consecutively to the suspension previously imposed by this court.

         BACKGROUND

         Gast was admitted to the practice of law in the State of Nebraska on January 22, 1973. At all times relevant to these [298 Neb. 205] proceedings, Gast was engaged in the practice of law in Nebraska. This disciplinary proceeding results from formal charges filed by Relator on March 24, 2017. See Neb. Ct. R. § 3-309(H) (rev. 2011).

         The undisputed formal charges allege that Gast (1) engaged in the unauthorized practice of law in violation of (a) Neb. Ct. R. of Prof. Cond. §§ 3-501.4 (failure to communicate with his client about her case and his suspension), (b) 3-501.16 (failure to withdraw after suspension), (c) 3-505.5 (rev. 2012) (practicing law while suspended), and (d) 3-508.4(d) (engaging in conduct prejudicial to administration of justice) and (2) filed frivolous pleadings in violation of (a) Neb. Ct. R. of Prof. Cond. §§ 3-503.1 (meritorious claims and contentions) and (b) 3-508.4(d) (engaging in conduct prejudicial to administration of justice). The formal charges further allege that Gast's acts and omissions violated his oath of office as an attorney licensed to practice law in Nebraska. See Neb. Rev. Stat. § 7-104 (Reissue 2012).

         Unauthorized Practice of Law

         On June 30, 2015, Gast's license to practice law in Nebraska was suspended because Gast failed to report his mandatory continuing legal education (MCLE) requirements and failed to pay his mandatory assessment to the Attorney Services Division.

         Gast had previously filed suit on behalf of Connie Surber in the district court for Douglas County in case No. CI14-7634. Although Gast had actual knowledge that his license was administratively suspended on June 30, 2015, he continued to represent Surber in that case and did not inform her that his license had been suspended. Gast did not withdraw from ...


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