This is an attorney discipline case in which the only question before this court is the appropriate sanction. Rodney A. Halstead admitted to authoring and filing annual guardianship reports containing false statements over a period of 6 years. The referee recommended that Halstead be suspended from the practice of law for 1 year with other conditions set forth in more detail below. Because this is a serious offense which was repeated year after year, we adopt the referee's recommendation and enter a judgment of suspension.
Halstead was admitted to the practice of law in the State of Nebraska on September 25, 1991. At all relevant times, he was engaged in the practice of law in Omaha, Nebraska.
GROUNDS FOR ATTORNEY DISCIPLINE
In August 2009, Halstead was appointed permanent guardian of an incapacitated adult (the ward). He was required to file annual reports on the condition of the ward and, among other items, list the ward's current address and indicate how many times and on what dates he saw the ward in the past year.
However, each report contained information which Halstead knew to be false. In annual reports filed in 2010 and 2011, Halstead handwrote virtually identical responses: "I have seen [the ward] about once a month [and] check via phone more often." Then, in 2012, his typical response changed and he handwrote, "I have been kept updated mostly by telephone." Halstead handwrote this same response in his 2013 and 2014 report. Finally, in his 2015 report, Halstead replied in short-hand and handwrote, "updated by telephone." In fact, Halstead had not visited the ward or spoken to anyone at the ward's assisted living facility since 2009. If he had, he would have learned that the ward had
On August 15, 2016, Counsel for Discipline of the Nebraska Supreme Court filed formal charges against Halstead, alleging that he violated his oath of office as an attorney and Neb. Ct. R. of Prof. Cond. §§ 3-501.1, 3-501.3, 3-501.4(a)(2), 3-503.3(a)(1) and (a)(3), and 3-508.4(a) and (c). Halstead 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.
After an evidentiary hearing, the referee reported his findings of fact and recommendations for the appropriate sanction. The report indicated that Halstead understood the seriousness of his misconduct. Specifically, it stated that Halstead was "direct and not evasive," that he "appeared genuinely uncomfortable and remorseful," and that it "appeared that his guilt and regret were sincere." It further stated that Halstead admitted to authoring and filing false reports year after year, but that he denied deliberately trying to mislead the court. Instead, Halstead maintained, "I believed that I was reporting his current condition as I knew it at the time." The referee concluded that Halstead was not deliberately misleading the court for the purpose of covering up anything, but noted, "[H]is very lack of purpose is what is most troubling about the repeated neglect and the repeated false filings."
The referee found that Halstead's repeated violation of the Rules of Professional Conduct in the same way over an extended period of time was a strongly aggravating factor. This factor was made worse by the mandatory annual reporting requirements.
The referee also identified certain mitigating factors. Such factors included the fact that Halstead was fully cooperative with Counsel for Discipline, that Halstead had no prior disciplinary issues, that Halstead's actions did not result in harm to the ward, that Halstead had an extensive community service record, and that Halstead understood the gravity of his offense and was sincerely remorseful. Halstead offered 22 letters in support from other attorneys in the community. However, the referee gave no weight to these letters, because none of the writers were aware of the actual charges against Halstead or otherwise explained what may have been the cause of the neglect or the false reporting.
With respect to the sanctions to be imposed, and giving weight to these aggravating and mitigating factors, the referee recommended that Halstead be suspended from the practice of law for 1 year. He also recommended that prior to readmission, Halstead be required to satisfactorily complete continuing legal education credits in legal ethics and office management. Finally, the referee recommended a period of supervision upon Halstead's readmission and a prohibition on accepting guardianship or conservatorship appointments for a period of time.
ASSIGNMENT OF ERROR
Halstead takes exception to the referee's recommended sanction but does not challenge the truth of the referee's findings. Therefore, the only question before this court is the appropriate discipline.
STANDARD OF REVIEW
Because attorney discipline cases are original proceedings before this court,
To determine whether and to what extent discipline should be imposed in a lawyer 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.
Halstead violated several disciplinary rules, including a rule which describes the special duties of attorneys in their role as officers of the court to protect the integrity of the adjudicative process.
In addition to the above six factors, the propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases.
Conversely, Halstead argues that cases resulting in public reprimand are more appropriate for comparison to his misconduct. He cites to cases in which the attorney misconduct involved simultaneously representing two clients who had conflicting and adverse interests in the same or similar transaction
The referee relied on appropriate cases for the purpose of determining a proportionate sanction for Halstead's offense. The serious nature of the offense and the fact that it was repeated year after year with no explanation suggests that Halstead is indifferent to the special duties he owes the court as an officer of the legal system. And neglect of these responsibilities compromises the integrity of the legal profession and the public interest which it serves.
We recognize that Halstead fully cooperated with the Counsel for Discipline, had practiced for many years, and had no previous disciplinary history. And we have considered the other mitigating factors identified by the referee. But the duty of candor to the tribunal lies at the heart of an attorney's role as an officer of the court. And this was no slip of the tongue. The falsehoods were made in writing and were repeated from year to year.
Therefore, upon our de novo review of the record, this court determines that Halstead should be suspended from the practice of law and required to comply with the other requirements set forth below.
Halstead's exception with regard to the recommended sanction is overruled. Halstead is hereby suspended from the practice of law for a period of 1 year, effective immediately, and, before applying for reinstatement, he must complete continuing legal education credits in legal ethics and office management. After the period of suspension, Halstead may apply for reinstatement upon a showing of his fitness to practice law and compliance with all requirements. Upon reinstatement, Halstead shall be subject to a 1-year probation, during which time he shall not accept guardianship or conservatorship appointments.
Halstead shall comply with Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to do so, he shall be subject to punishment for contempt of this court. Halstead is directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) (rev. 2014) and 3-323(B) within 60 days after an order imposing costs and expenses, if any, is entered by this court.
JUDGMENT OF SUSPENSION.