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

Supreme Court of Nebraska

June 15, 2018

State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator,
v.
Kent J. Trembly, 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 discipline should be imposed and, if so, the appropriate discipline under the 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 respondent generally, and (6) the respondent's present or future fitness to continue in the practice of law.

         4.__. Each attorney discipline case must be evaluated in light of its particular facts and circumstances.

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

         6. __. The propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases. 7. Disciplinary Proceedings: Rules of the Supreme Court. A pattern of noncompliance with Nebraska disciplinary rules and cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions.

         [300 Neb. 196] 8. Disciplinary Proceedings: Convictions. A felony conviction is a strongly aggravating factor in determining the sanction ultimately imposed on an attorney.

         9. Disciplinary Proceedings. An attorney's cooperation in disciplinary proceedings, taking responsibility for his or her actions, and lack of previous discipline are each mitigating factors.

         10.__. A continuing commitment to the legal profession and the community is also a mitigating factor in an attorney discipline case.

         11.__. When no exceptions to the referee's findings of fact in an attorney discipline case are filed, the Nebraska Supreme Court may consider the referee's findings final and conclusive.

         12. Disciplinary Proceedings: Case Disapproved. State ex rel. Counsel forDis. v. Mills, 267 Neb. 57, 671 N.W.2d 765');">671 N.W.2d 765 (2003), is disapproved to the extent it was determined therein that a 2-year suspension was a sufficient sanction based on the egregious conduct substantiating the grounds for disciplinary action.

          Original action. Judgment of suspension.

          Julie L. Agena, Assistant Counsel for Discipline, for relator.

          Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., for respondent.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Hall, District Judge.

          PER CURIAM.

         This is an attorney discipline case in which the only question before this court is the appropriate sanction. Kent J. Trembly admits to receiving a felony conviction for filing a false individual income tax return in the U.S. District Court for the District of Nebraska. The referee recommended Trembly be suspended from the practice of law for 18 months. However, after our de novo review of the record, we conclude a 3-year suspension from the practice of law is the proper sanction.

         BACKGROUND

         Trembly was admitted to the practice of law in the State of Nebraska on September 28, 1994. At all relevant times, he was engaged in the practice of law in Wahoo, Nebraska.

         [300 Neb. 197] Grounds for Attorney Discipline On December 16, 2015, the U.S. District Court for the District of Nebraska accepted Trembly's plea of guilty and found him guilty of the charge of filing a false tax return for tax year 2006, under I.R.C. § 7206(1) (2012). Specifically, Trembly filed a U.S. individual tax return that failed to report any gross receipts from his business activity-involving legal, veterinary, supplement sales, and investment brokerage businesses-omitting gross receipts of $1, 110, 982.77. On December 8, 2016, Trembly was sentenced to probation for 2 years, with 6 months of home restriction, and restitution in the amount of $110, 374.58.

         Procedural History

         On May 3, 2017, Counsel for Discipline of the Nebraska Supreme Court filed formal charges against Trembly, alleging that he violated his oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond. § 3-508.4(a) through (c). Trembly admitted to these allegations in his answer, and we sustained Counsel for Discipline's motion for judgment on the pleadings limited to the facts. We then appointed a referee for the taking of evidence limited to the appropriate discipline.

         Referee's Report

         After an evidentiary hearing, the referee reported his findings of fact and recommendations for the appropriate sanction. The referee reasoned that omitting over $1 million of income from a tax return was serious, needed to be deterred, and reflected poorly on the reputation of the bar as a whole. However, the referee noted that Trembly's actions did not harm any clients and that "Trembly has accepted responsibility for the actions that form the basis of this proceeding, has satisfied all terms of his probation and has cooperated with Counsel for [D]iscipline to resolve this matter expeditiously"

         The referee also identified certain mitigating factors that reflect on Trembly's present and future fitness to practice law: Trembly's cooperation with Counsel for Discipline and [300 Neb. 198] acceptance of responsibility; Trembly's lack of prior disciplinary issues, with Counsel for Discipline or the professional boards in the three states where he holds a veterinarian license; and his honorable discharge from the Nebraska Air National Guard as a lieutenant colonel in 2014.

         In the report, the referee acknowledged the seriousness of a felony conviction and that this court has generally found disbarment to be the appropriate sanction for attorneys who have received a felony conviction. Nevertheless, the referee stated that such discipline was not required and that "the nature of the conduct. . . ought to be evaluated more thoroughly than the final classification of any criminal proceeding."

         The referee found Trembly's conduct more egregious than in cases where attorneys filed no income tax returns, receiving 1-year suspensions, but less egregious than in State ex rel. Counsel for Dis. v. Mills[1] (Mills T), where we issued a 2-year suspension. Because the attorney in Mills I, Stuart B. Mills, was convicted of a felony for the conduct we had disciplined him for after our proceedings and he received no additional suspension because of the conviction, the referee determined Trembly's felony conviction was essentially irrelevant to determining his discipline. In weighing the factors for imposing discipline and the mitigating factors, the referee determined the appropriate sanction for Trembly fell between cases involving 1-year and 2-year suspensions. Accordingly, the referee recommended Trembly be suspended from the practice of law for 18 months.

         ASSIGNMENT OF ERROR

         The only question before this court is the appropriate discipline.

         STANDARD OF REVIEW

         Because attorney discipline cases are original proceedings before this court, we review a referee's recommendations [300 Neb. 199] de novo on the record, reaching a conclusion independent of the referee's findings.[2]

         ANALYSIS

         The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and. if so, the appropriate discipline under the circumstances.[3] To determine whether and to what extent discipline should be imposed in an attorney discipline proceeding, we consider 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 respondent generally, and (6) the respondent's present or future fitness to continue in the practice of law.[4] Each attorney discipline case must be evaluated in light of its particular facts and circumstances.[5]

         Violation of a disciplinary rule concerning the practice of law is a ground for discipline.[6] Further, criminal offenses committed by an attorney and involving violence, dishonesty, breach of trust, or serious interference with the administration of justice require imposition of attorney discipline.[7]

         Trembly admitted being convicted of a felony for filing a false individual income tax return and violating the Nebraska Rules of Professional Conduct and his oath of office as an attorney, § 7-104, in his answer to the formal charges. Thus, we granted Counsel for Discipline's motion for judgment on the pleadings as to the facts substantiating the grounds for [300 Neb. 200] disciplinary action. We must now determine the appropriate sanction.

         Under Neb. Ct. R. § 3-304, this court may impose one or more of the following disciplinary sanctions: "(1) Disbarment by the Court; or (2) Suspension by the Court; or (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) ...


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