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

Supreme Court of Nebraska

February 8, 2019

State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator.
v.
Jeremy C. Jorgenson, 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 evaluated under the particular facts and circumstances of the case.

         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. ___. 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.

         5. 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.

         6. Disciplinary Proceedings. The Nebraska Supreme Court has generally, but not always, disbarred attorneys who continue to practice law despite their suspensions.

         7. ___. Repeatedly ignoring requests for information from the Counsel for Discipline indicates a disrespect for the Nebraska Supreme Court's [302 Neb. 189] disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice.

         8. ___. The Nebraska Supreme Court considers an attorney's failure to respond to inquiries and requests for information from the Counsel for Discipline as an important matter and as a threat to the credibility of attorney disciplinary proceedings.

         9. ___. A history of violating disciplinary rules and a history of failing to communicate with clients, courts, and the Counsel for Discipline represent a pattern of noncompliance with disciplinary rules, and cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions.

         10. ___. Cumulative acts of attorney misconduct can, and often do, lead to disbarment.

         11. ___. Remorse is a mitigating factor when considering the appropriate sanction in an attorney disciplinary proceeding.

         12. Disciplinary Proceedings: Proof. To establish depression as a mitigating factor in a proceeding to discipline an attorney, the attorney is required to show (1) medical evidence that he or she is affected by depression, (2) that depression was a direct and substantial contributing cause to the misconduct, and (3) that treatment of the depression will substantially reduce the risk of further misconduct.

         13. ___: ___. The Nebraska Supreme Court will apply the issue of substance abuse as a mitigating factor in an attorney disciplinary proceeding only after the attorney presents evidence that he or she acknowledges the condition, voluntarily seeks treatment, and terminates use of the substance.

         14. Disciplinary Proceedings. The purpose of a disciplinary proceeding against an attorney is not so much to punish the attorney as it is to determine whether it is in the public interest that an attorney be permitted to practice, which question includes considerations of the protection of the public.

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

          Original action. Judgment of disbarment.

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

          No appearance for respondent.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Fqreudenberg, JJ.

         [302 Neb. 190] PER CURIAM.

         This is an attorney discipline case against Jeremy C. Jorgenson stemming from violations occurring after Jorgenson was administratively suspended from the practice of law in Nebraska for failing to satisfy mandatory continuing legal education (MCLE) reporting requirements. Formal charges were filed against Jorgenson, claiming violations of Neb. Ct. R. § 3-316 (rev. 2014) (notification requirements by disbarred or suspended members) and Neb. Ct. R. of Prof. Cond. §§ 3-501.4 (communications), 3-501.16 (declining or terminating representation), 3-505.5 (rev. 2012) (unauthorized practice of law), 3-508.1 (bar admission and disciplinary matters), and 3-508.4 (rev. 2016) (misconduct), as well as his oath of office as an attorney as provided by Neb. Rev. Stat. § 7-104 (Reissue 2012). Jorgenson admitted the charges, a judgment on the pleadings was entered, and a hearing on the question of appropriate sanctions was held before an appointed referee. The referee's report following this hearing recommended Jorgenson be disbarred. Upon our de novo review and for the reasons set forth herein, we agree with the referee's recommendation and conclude that disbarment is the proper sanction.

         BACKGROUND

         Jorgenson was admitted to the practice of law in Nebraska on April 15, 2008. At all relevant times, he was engaged in the practice of law in Nebraska. Between December 2016 and July 2017, Jorgenson was also practicing law in Illinois, where he had moved. In July, Jorgenson apparently moved back to Nebraska but has failed to provide updated contact information to the Attorney Services Division or the Counsel for Discipline since that time.

         Previous Disciplinary Actions

         Jorgenson has previously been the subject of two disciplinary cases and one administrative suspension in Nebraska. In the first action in October 2012, Jorgenson received a public reprimand and was placed on probation for 1 year due to a [302 Neb. 191] violation relating to contingent fee agreements.[1] In the second action, Jorgenson was disciplined for failing to provide competent and diligent representation to a client when he failed to appear for oral arguments at the U.S. Court of Appeals for the Eighth Circuit, failed to adequately supervise his support staff, and failed to timely respond to demands for information from the Counsel for Discipline.[2] In that case, Jorgenson was indefinitely suspended in February 2018 from the practice of law in Nebraska, with a minimum suspension of 2 years. Finally, and relevant to the present violations, Jorgenson was the subject of an administrative suspension commencing June 14, 2017, for failure to fulfill his MCLE requirements for 2016. Although Jorgenson testified in the present case that he completed his MCLE for 2016, no substantive evidence regarding completion of those requirements was submitted.

         Formal Charges

         In the present action, Jorgenson admitted to all the allegations within the formal charges with the exception of one sentence, which was subsequently withdrawn. Therefore, the facts alleged are uncontested and may be taken as true.

         The amended formal charges contain five counts. Count I alleges Jorgenson continued to practice law by filing pleadings for a client in Douglas County Court after his administrative suspension. These pleadings included a "Plea of Not Guilty/ Waiver of Appearance/Appearance of Counsel" on the client's behalf on July 7, 2017. Jorgenson failed to notify this client in writing that he had been suspended, failed to assist the client with obtaining new representation, and failed to promptly refund all client funds and provide a full accounting. These failures continued after he was contacted by the client's new counsel in early August.

         [302 Neb. 192] Count II alleges that during his administrative suspension. Jorgenson represented a client in a criminal matter in Merrick County District Court who had entered a guilty plea and was scheduled to be sentenced on August 7, 2017. Jorgenson failed to attend the sentencing hearing and notified the client by text message on the morning of the hearing that he was suspended. Jorgenson failed to notify the client in writing that his license had been suspended, failed to assist the client in ...


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