State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, Relator.
John C. Nimmer, 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.
___. In an attorney discipline proceeding, when a party takes
exception to the referee's report, the Nebraska Supreme
Court conducts a trial de novo on the record, in which the
court reaches a conclusion independent of the findings of the
referee; provided, however, that where the credible evidence
is in conflict on a material issue of fact, the court
considers and may give weight to the fact that the referee
heard and observed the witnesses and accepted one version of
the facts rather than another.
Disciplinary Proceedings. Client trust
accounts, in particular, are always open to review by the
Counsel for Discipline.
Disciplinary Proceedings: Rules of the Supreme Court:
Time. An attorney's failure to preserve client
trust account records does not provide an affirmative defense
to charges of impermissible commingling, nor does the 5-year
preservation rule under Neb. Ct. R. of Prof. Cond. §
3-501.15 constrain or limit the Counsel for Discipline's
investigative or prosecutorial duties.
Disciplinary Proceedings: Time. There is no
time limitation on the acts or omissions that can give rise
to attorney discipline for violating the Nebraska Rules of
Professional Conduct, the attorney's oath, or the
provisions of Nebraska's disciplinary rules.
Disciplinary Proceedings: Attorneys at Law.
Attorneys licensed to practice law in the State of Nebraska
agree to operate under the supervision of the office of the
Counsel for Discipline.
Neb. 907] 7. ___: ___. A license to practice law confers no
vested right, but is a conditional privilege, revocable for
___. Violation of any of the ethical standards relating to
the practice of law or any conduct of an attorney in his or
her professional capacity which tends to bring reproach on
the courts or the legal profession constitutes grounds for
suspension or disbarment.
Disciplinary Proceedings. Violation of the
standards set forth in the disciplinary rules must be
established by clear and convincing evidence.
Disciplinary Proceedings: Rules of the Supreme
Court. Collectively, subsections (a) and (b) of Neb.
Ct. R. of Prof. Cond. § 3-501.15 prohibit the
commingling of client funds with an attorney's personal
Disciplinary Proceedings. Generally
speaking, an attorney violates the rule against commingling
when the funds of the client are intermingled with those of
the attorney in such a way that their separate identity is
lost and they may be used by the attorney for personal
expenses or subjected to the claims of the attorney's
Disciplinary Proceedings: Proof: Circumstantial
Evidence. Disciplinary violations can be proved by
Disciplinary Proceedings: Attorneys at Law.
In the context of attorney discipline cases, the Nebraska
Supreme Court has repeatedly recognized the ancient maxim
that ignorance of the law is no excuse. It is a maxim
sanctioned by centuries of experience and it applies with
even greater emphasis to an attorney at law who is expected
to be learned in the law.
Disciplinary Proceedings. Neither good faith
nor ignorance of the rules prohibiting commingling client and
personal funds provides a defense to a disciplinary charge
that an attorney violated the rules against commingling.
___. 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.
___. Each attorney discipline case must be evaluated in light
of its particular facts and circumstances.
___. 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
Neb. 908] 18. ___. In attorney discipline cases, the
propriety of a sanction must be considered with reference to
the sanctions imposed in prior similar cases.
Disciplinary Proceedings: Rules of the Supreme
Court. Under Neb. Ct. R. § 3-304, the Nebraska
Supreme Court may impose one or more of the following
disciplinary sanctions: (1) disbarment; (2) suspension; (3)
probation, in lieu of or subsequent to suspension; (4)
censure and reprimand; or (5) temporary suspension.
Disciplinary Proceedings. The Nebraska
Supreme Court considers commingling of client funds with an
attorney's own funds to be a matter of gravest concern in
reviewing claims of lawyer misconduct.
___. The goal of attorney discipline proceedings is not as
much punishment as a determination of whether it is in the
public interest to allow an attorney to keep practicing law.
___. Providing for the protection of the public requires the
imposition of an adequate sanction to maintain public
confidence in the bar.
___. An attorney's admission of responsibility for his or
her actions reflects positively upon his or her attitude and
character and is to be considered in determining the
___. Because cumulative acts of attorney misconduct are
distinguishable from isolated incidents, they justify more
serious sanctions. Cumulative acts of misconduct can, and
often do, lead to disbarment.
Disciplinary Proceedings: Words and Phrases.
In the context of attorney disciplinary proceedings,
misappropriation is any unauthorized use of client funds
entrusted to an attorney, including not only stealing, but
also unauthorized temporary use for the attorney's own
purpose, whether or not the attorney derives any personal
gain or benefit therefrom.
Disciplinary Proceedings. Lack of financial
harm to clients is not a mitigating factor in disciplinary
proceedings where an attorney has commingled client and
___. Absent mitigating circumstances, disbarment is the
appropriate discipline in cases of misappropriation or
commingling of client funds.
Disciplinary Proceedings: Presumptions.
Mitigating factors may overcome the presumption of disbarment
in misappropriation and commingling cases where they are
extraordinary and substantially outweigh any aggravating
Original action. Judgment of disbarment.
William F. Austin, Special Prosecutor, of Blake & Austin
Law Firm, L.L.P., for relator.
Neb. 909] John C. Nimmer, pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Dobrovolny, District Judge.
February 1, 2017, the Counsel for Discipline of the Nebraska
Supreme Court filed formal charges against John C. Nimmer,
alleging he violated Neb. Ct. R. of Prof. Cond. §§
3-501.15 and 3-508.4 (rev. 2016) and his oath of office as an
attorney licensed to practice in Nebraska by commingling
personal funds with client trust account funds. This court
appointed a referee who held an evidentiary hearing and then
filed a report finding Nimmer had violated the disciplinary
rules by depositing personal funds into his client trust
account and using his client trust account to pay personal
expenses. The referee recommended a 1 -year suspension
followed by a 2-year period of probation. Nimmer filed an
exception to the referee's report, challenging both the
finding that he violated the disciplinary rules and the
by clear and convincing evidence that Nimmer commingled
client funds with personal funds, in violation of
§§ 3-501.15 and 3-508.4 of the Nebraska Rules of
Professional Conduct and his oath of office. Furthermore, we
conclude on this record that the appropriate sanction for
Nimmer's misconduct is disbarment.
was admitted to the practice of law in the State of Nebraska
in 1993, and since that time has practiced primarily in Omaha
and Bellevue, Nebraska. In 2004, Nimmer opened a client trust
account at an Omaha area bank. The manner in which Nimmer has
used that client trust account is the central issue in this
Neb. 910] 1. Grievance and Investigation
letter dated March 11, 2016, the enforcement division of the
U.S. Securities and Exchange Commission (SEC) notified the
Counsel for Discipline of "possible professional
misconduct" by Nimmer. The SEC had subpoenaed records
from Nimmer's client trust account in connection with an
unrelated investigation and reported that its "review of
Nimmer's trust account transactions revealed that he
wrote numerous checks for personal expenses, ranging from
rent and child support to dog boarding and landscaping
fees." On March 18, the Counsel for Discipline notified
Nimmer that he was the subject of an investigation and
provided him a copy of the grievance.
8, 2016, the Counsel for Discipline provided Nimmer with
copies of the bank records subpoenaed by the SEC and asked
him to explain several checks written on his client trust
account that did not appear to be client related. Nimmer was
also asked to explain a $10, 000 check from his mother with
the memorandum notation "loan" which had been
deposited into his client trust account. Nimmer declined, at
the time, to answer the questions posed by the Counsel for
Counsel for Discipline then subpoenaed Nimmer's client
trust account records directly from the bank. Through two
subpoenas, records were obtained for the time period from
January 1, 2006, through September 1, 2016. After reviewing
these records, the Counsel for Discipline determined there
were reasonable grounds for discipline, and thus reduced the
SEC's grievance to a complaint and forwarded it to the
Committee on Inquiry of the Fourth Judicial
District. Thereafter, the inquiry panel found
reasonable grounds for discipline and determined it would be
in the public's interest to file formal
Neb. 911] 2. Formal Charges
February 1, 2017, the Counsel for Discipline filed formal
charges against Nimmer. It alleged that between January 2006
and February 2016, Nimmer wrote personal checks on his client
trust account to 29 different businesses, individuals, and
organizations. Additionally, it alleged that on December 20,
2007, Nimmer deposited a $10, 000 check from his mother
issued to him with the notation "loan" into his
client trust account. The formal charges alleged that by
using his client trust account in this fashion, Nimmer
commingled his personal funds with client funds and thereby
violated his oath of office as an attorney licensed to
practice in Nebraska and § 3-501.15, which provides in
(a) A lawyer shall hold property of clients or third persons
that is in a lawyer's possession in connection with a
representation separate from the lawyer's own property.
Funds shall be kept in a separate account maintained in the
state where the lawyer's office is situated. Other
property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other
property shall be kept by the lawyer and shall be preserved
for a period of 5 years after termination of the
(b) A lawyer may deposit the lawyer's own funds in a
client trust account for the sole purpose of paying bank
service charges on that account, but only in an amount
necessary for that purpose.
formal charges also alleged Nimmer's actions violated
§ 3-508.4, which provides in relevant part that it is
professional misconduct for a lawyer to "violate or
attempt to violate the Rules of Professional
Neb. 912] 3. Nimmer Moves to Dismiss and Recuse
filed a motion to dismiss the formal charges, alleging the
Counsel for Discipline "is part of the Nebraska judicial
branch under the direct supervision of this Court, which
violates separation of powers, which violates constitutional
due process, which in turn negates [the Counsel for
Discipline] from having standing to have filed the Formal
Charges, thereby constituting a lack of subject matter
jurisdiction." This court overruled Nimmer's motion
to dismiss as meritless.
also moved to recuse the Counsel for Discipline, alleging he
had a conflict of interest because Nimmer planned to call him
as a necessary fact witness. We overruled his motion to
recuse, but determined it was prudent under the circumstances
to appoint a special prosecutor.
Nimmer Files Answer and Second Motion to Dismiss
his motion to dismiss was overruled, Nimmer filed a verified
answer to the formal charges. His answer admitted some of the
factual allegations in the formal charges, but generally
denied that his conduct amounted to commingling in violation
of the disciplinary rules. Additionally, Nimmer's answer
raised several affirmative defenses which will be addressed
later in this opinion.
also filed a second motion to dismiss, this time asking that
the disciplinary proceeding be dismissed without prejudice
due to alleged procedural errors predating the filing of the
formal charges. This court found the motion was merit-less
and overruled it.
Neb. 913] 5. Nimmer Seeks to Exclude Client Trust Account
filed "Motions to Quash Subpoenas and Exclude
Evidence," seeking to prevent his client trust account
records from being offered at the disciplinary hearing. He
argued the records had been obtained improperly and suggested
the SEC had violated federal privacy laws when it provided
his trust account records to the Counsel for Discipline in
connection with the grievance. Nimmer acknowledged that after
receiving the grievance, the Counsel for Discipline
independently subpoenaed the trust account records as part of
the disciplinary investigation. Nimmer did not claim those
subpoenas were unreasonable or oppressive,  but argued he did
not have an opportunity to object and thus asked that all
records produced in response to those subpoenas be excluded.
Nimmer asked that any client trust account records more than
5 years old be excluded even if more recent records were
admitted. In support, Nimmer relied on § 3-501.15(a),
which requires attorneys to maintain complete records of
client property for 5 years after termination of the
representation. Nimmer claimed that because he had not
retained any client records predating 2011, the Counsel for
Discipline should be prevented from offering any subpoenaed
trust account records for that period.
referee found no merit to Nimmer's arguments for
exclusion of the subpoenaed trust account records and
overruled the motions.
Evidentiary Hearing On December 4, 2017, an evidentiary
hearing was held on the formal charges. Nimmer represented
himself and was the only witness to testify.
Neb. 914] (a) Exhibits
special prosecutor introduced, and the referee received.
Nimmer's client trust account records from 2006 through
2016. Nimmer did not dispute the veracity of those records
and instead stated, "I'll concede every transaction
in this exhibit is a bona fide transaction. Whatever the
notations say, they say. . . . [T]he exhibit speaks for
special prosecutor also introduced, and the referee received,
a record of a prior attorney disciplinary proceeding
involving Nimmer. In 2013, the Counsel for Discipline alleged
Nimmer had received $12, 500 from a client to deliver
"qualified investors" as advertised on his website
and then failed to provide such services. Nimmer's
actions were alleged to have violated Neb. Ct. R. Prof. Cond.
§ 3-507.1 and § 3-508.4(a).Nimmer entered
a conditional admission to the 2013 charges and requested a
public reprimand. This court accepted his conditional
admission and issued a public reprimand.
Nimmer's Testimony As stated, at the hearing, Nimmer did
not dispute the veracity of the client trust account records
or the accuracy of the notations on various checks deposited
into and written on the client trust account. For instance,
Nimmer admitted writing numerous checks for personal expenses
from his client trust account over the course of several
years, including checks for rent, checks to his church,
checks to his mother, and checks for his daughter's
summer camp. He also admitted his mother had given him
thousands of dollars that he deposited into his client trust
account. Nimmer characterized these deposits as "credit
line[s]," rather than "loan[s]" from his
mother, but he admitted the funds were placed into his client
[300 Neb. 915] trust account and were available for his
personal use "or hers, if she asked."
also admitted that on several occasions, he transferred funds
from his personal checking account into his client trust
account. He admitted these funds were not transferred to pay
bank service charges and were not connected to the
representation of any client.
Nimmer's Affirmative Defenses
Nimmer did not vigorously contest the documentary evidence
detailing the non-client-related funds going into and out of
his client trust account, he did argue that this activity did
not amount to unlawful commingling. In support of this
contention, Nimmer advanced three basic arguments, which he
framed as affirmative defenses. First, he argued that writing
personal checks directly from his client trust account was
not a violation of § 3-501.15, because it was possible
he was writing those checks on earned fees. Second, he argued
§ 3-501.15 does not prohibit attorneys from depositing
non-client-related funds into a client trust account. And
third, he argued that even if the referee found he had
violated the rules against commingling personal and client
funds, he acted in "good faith" and thus should be
exempt from discipline. He makes these same arguments in his
briefing to this court, and we address them later in our
Referee's Report and Recommendation On February, 13,
2018, the referee filed his written report. The referee
found, summarized, that from January 1, 2006, through
September 1, 2016, Nimmer impermissibly deposited personal
funds into his client trust account in amounts more than
necessary to pay bank service charges on that account and
used his client trust account to pay personal expenses. It is
not necessary to recite all of the referee's factual
findings, but the following are representative:
[300 Neb. 916]• On or about December 20, 2007, Nimmer
deposited a $10, 000 check from his mother with the notation
"'loan'" into his client trust account.
Nimmer admitted these funds were for his personal use, but
were also available to pay his mother's personal expenses
if she asked. In that regard, Nimmer wrote a check from the
client trust account in the amount of $4, 775 to a
construction company for repairs to his mother's house,
and wrote several checks to his mother for a car he was
purchasing from her. None of these checks or transactions
were connected to representation of a client.
• On or about June 25, 2013, Nimmer deposited two checks
totaling $10, 855.18 into his client trust account. The
checks had been made payable to Nimmer's mother, and she
endorsed both checks over to him. Nimmer described this
deposit as a '"credit line'" from his
mother. He admitted the funds were not connected to the
representation of any client, but, rather, were intended to
be used by Nimmer for his personal expenses if necessary.
• On multiple occasions in 2014 and 2016, Nimmer
transferred money from his personal checking account into his
attorney trust account. Nimmer admitted these transfers were
not to pay bank fees and were not in connection with any
client representation, but he claimed the transfers were
"for the benefit of his daughter.
• Nimmer wrote approximately 35 checks on his client
trust account to his church, with notations such as
"dues," "Almsgiving Fund," "dinner
tickets," and "Food for Hungry Funds." Nimmer
admitted the notations on the checks were accurate and the
payments were not made in connection with client
• Nimmer wrote multiple checks over multiple years out
of his client trust account to Camp St. Raphael. Nimmer
admitted those checks were for his daughter's summer camp
and were not connected to any client representation.
• Nimmer wrote approximately 20 checks on his client
trust account payable to the landlord of his Omaha law office
[300 Neb. 917] in the amount of either $1, 750, $2, 000, or
some multiple thereof. Nimmer admitted these checks ...