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

Supreme Court of Nebraska

November 30, 2018

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

         1. Disciplinary Proceedings. Attorney discipline cases are original proceedings before the Nebraska Supreme Court, and the court reviews a referee's recommendations de novo on the record, reaching a conclusion independent of the referee's findings.

         2. __.__ 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.

         3. __ . The goal in disciplining attorneys in attorney discipline proceedings is not as much punishment as it is a determination of whether it is in the public interest to allow an attorney to keep practicing law.

         4. __ . The determination of an appropriate penalty to be imposed on an attorney in a disciplinary proceeding requires consideration of any aggravating or mitigating factors.

         5. __. The Nebraska Supreme Court considers the following factors in determining whether and to what extent discipline should be imposed: (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 and future fitness to continue in the practice of law.

         Original action. Judgment of suspension.

          John W. Steele, Assistant Counsel for Discipline, for relator.

          Kent E. Person, pro se.

         [301 Neb. 662] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Per Curiam.

         INTRODUCTION

         The Counsel for Discipline of the Nebraska Supreme Court filed formal charges against Kent E. Person, alleging ethical violations. At the hearing before the referee, Person, a Nebraska licensed attorney, admitted to violating his oath of office as an attorney, as well as Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (communications), 3-503.3 (candor toward tribunal), and 3-508.4 (misconduct). We order an indefinite suspension from the practice of law for a minimum of 2 years, followed by a 2-year period of probation.

         BACKGROUND

         Person was admitted to the practice of law in the State of Nebraska on June 24, 1968. Person began practicing as an attorney in 1970, working with his father in Holdrege, Nebraska.

         Person was retained by complainant to administer the estate of complainant's mother following her passing on November 16, 2007. The following timeline is placed against the backdrop of repeated, and rarely answered, communications by complainant over the 8 years that Person was purporting to administer the estate of complainant's mother.

         On January 22, 2008, Person opened the estate informally in Phelps County Court, at which time, complainant was appointed as the estate's personal representative. After no further action had taken place with regard to the estate, on June 3, the clerk magistrate sent Person a notification reminding him that the estate inventory had been due on April 22. Person filed the initial inventory on December 1, over 7 months after the statutorily mandated filing date.

         In connection with meeting federal tax reporting requirements, Person contacted complainant on November 25, 2008, [301 Neb. 663] to request that he come to Person's office to sign the "Federal Estate Tax Return, Form 706." After complainant signed the form, Person told complainant that he, Person, would file the form. Person ultimately failed to do so. Person withheld from complainant that the form should have been filed within 9 months of complainant's mother's death, a deadline that had passed over 3 months earlier. Person further withheld information regarding penalties and interest that would result from the missed deadline.

         As a result of the case's being open in excess of 18 months, the clerk magistrate sent a notification to Person requesting that a '"status letter'" be filed with the court by August 15, 2009. After Person failed to file the ordered status letter, the clerk magistrate issued a show cause order to Person, setting the matter for hearing on October 19. The result of the hearing is not clear from the record. On April 6, 2010, the clerk magistrate sent another communication to Person, seeking a report on the status of the estate. Receiving no reply or status letter, the clerk ...


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