Nebraska Advance Sheets
818 287 NEBRASKA REPORTS
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Thomas G. Sundvold, respondent.
___ N.W.2d ___
Filed April 4, 2014. No. S-13-002.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Appeal and Error. In an attorney discipline case,
the Nebraska Supreme Court reaches its conclusion independent of the findings
of the referee. However, where the credible evidence is in conflict on a material
issue of fact, the Nebraska Supreme 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.
3. Disciplinary Proceedings: Proof. Violation of a disciplinary rule concerning
the practice of law is a ground for discipline, and disciplinary charges against an
attorney must be established by clear and convincing evidence.
4. Disciplinary Proceedings. In attorney discipline cases, the basic issues are
whether discipline should be imposed and, if so, the type of discipline under
the circumstances.
5. ____. The Nebraska Supreme Court evaluates each attorney discipline case in
light of its particular facts and circumstances and considers the attorney’s acts
both underlying the events of the case and throughout the proceeding.
6. ____. The goal of attorney disciplinary proceedings is not as much punishment as
determination of whether it is in the public interest to allow an attorney to keep
practicing law.
7. ____. To determine whether and to what extent discipline should be imposed in
an attorney discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing 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.
8. Disciplinary Proceedings: Words and Phrases. In the context of attorney
discipline proceedings, misappropriation is an unauthorized use of client funds
entrusted to an attorney, including not only stealing, but also unauthorized tem-
porary use for the attorney’s own purpose, whether or not the attorney derives
personal gain therefrom.
9. Disciplinary Proceedings. Misappropriation of client funds is one of the most
serious violations of duty an attorney owes to clients, the public, and the courts.
10. ____. Misappropriation by an attorney violates basic notions of honesty and
endangers public confidence in the legal profession.
11. ____. Absent mitigating circumstances, disbarment is the appropriate discipline
in cases of misappropriation or commingling of client funds.
12. ____. The fact a client did not suffer any financial loss does not excuse an attor-
ney’s misappropriation of client funds and does not provide a reason for imposing
a less severe sanction.
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 819
Cite as 287 Neb. 818
13. ____. The Nebraska Supreme Court does not view the misappropriation of funds
from one’s own firm as any less dishonest and deceptive than the misappropria-
tion of client funds.
14. ____. In determining the appropriate discipline of an attorney, the Nebraska
Supreme Court considers the discipline imposed in cases presenting similar
circumstances.
15. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
16. ____. In evaluating attorney discipline cases, the Nebraska Supreme Court con-
siders aggravating and mitigating circumstances.
Original action. Judgment of suspension.
Kent L. Frobish, Assistant Counsel for Discipline, for
relator.
Clarence E. Mock, of Johnson & Mock, for respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
NATURE OF CASE
The Counsel for Discipline of the Nebraska Supreme Court,
relator, filed amended formal charges against Thomas G.
Sundvold, respondent, alleging that he violated his oath of
office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue 2012),
and several of the Nebraska Rules of Professional Conduct.
Respondent filed an answer admitting certain factual allega-
tions but denying other certain factual allegations and denying
that he violated the rules of professional conduct. This court
appointed a referee. After holding an evidentiary hearing,
the referee filed a report and determined that respondent had
violated Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (competence);
3-501.3 (diligence); 3-501.4(a) and (b) (communications);
3-501.15(a) and (c) (safekeeping property); and 3-508.4(a),
(c), and (d) (misconduct); and his oath of office as an attorney.
The referee recommended that respondent be suspended for a
period of 3 years, followed by 2 years’ monitored probation.
Respondent filed exceptions to the referee’s report regarding
findings of fact and conclusions of law and the recommended
discipline. In his brief to this court, respondent states that he
Nebraska Advance Sheets
820 287 NEBRASKA REPORTS
withdraws his exceptions to the referee’s findings of fact and
conclusions of law and takes exception only to the referee’s
recommended discipline. Relator agrees with the referee’s
recommended discipline. We determine that the proper sanc-
tion is suspension from the practice of law for a period of 3
years and, upon reinstatement, 2 years of probation, includ-
ing monitoring.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in Nebraska
in September 2003. At all relevant times, respondent was
engaged in the private practice of law in Lincoln, Nebraska,
under the jurisdiction of the Committee on Inquiry of the First
Disciplinary District, which determined reasonable grounds
existed to discipline respondent. Accordingly, formal charges
were filed against respondent on January 3, 2013, and amended
formal charges were filed on February 15.
The amended formal charges contained two counts against
respondent. Count I generally alleged that respondent, while
employed by a law firm, failed to properly represent a client,
a roofing contractor, in a civil suit brought against the client;
failed to deposit advance fees from the client in the law firm’s
trust account; and failed to turn over attorney fees received
from the client to the law firm in accordance with an oral
agreement with the law firm. Count II generally alleged that
respondent failed to deliver payments that he received from
three additional clients to the law firm in accordance with an
oral agreement with the law firm.
Respondent filed his answer on March 15, 2013, in which
he admitted certain factual allegations and denied other factual
allegations and denied that he violated the rules of professional
conduct. Given respondent’s answer, this court appointed a
referee on March 25.
On June 11, 2013, an evidentiary hearing was held before
the referee. On September 10, the referee filed his report. The
referee found facts substantially as described below. Following
our review of the record, we determine there is clear and con-
vincing evidence in the record to support these facts.
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 821
Cite as 287 Neb. 818
Respondent graduated from Creighton University School
of Law in May 2002. During law school, respondent served
as a member of the Creighton Law Review and worked as a
law clerk for an Omaha law firm. As a law clerk, respondent’s
duties were confined to legal research and brief writing.
Respondent’s first employer after law school was an insur-
ance company, where he worked as a cargo claims attorney
starting in May 2003. Respondent essentially worked as an
insurance adjuster negotiating claims. He did not participate in
any litigation, nor did he draft any pleadings.
In 2006, respondent accepted employment with a carrier
company as an associate general counsel handling bodily
injury claims. His duties primarily involved adjusting claims
for bodily injury. While employed there, respondent was
not involved in any courtroom litigation or the drafting
of pleadings.
In August 2010, respondent left the carrier company to
engage in the private practice of law. Up to that time, respond
ent did not have any experience in the financial aspects of the
attorney-client relationship. He had never negotiated a fee,
handled client funds, or drafted a contract for the provision of
legal services, nor had he ever worked with a billing system or
utilized a trust account.
In late September or early October 2010, respondent joined a
law firm as an associate attorney. Respondent was an employee
with the law firm as an associate attorney from October 2010
through December 12, 2011.
Respondent’s compensation was based upon an oral agree-
ment with the law firm. Respondent was to receive a percent-
age of the gross amount of fees paid by his clients to the law
firm. Under this agreement, 60 percent of the gross amount
was to go to respondent and 40 percent was to go to the law
firm. Respondent was obligated to deliver to the law firm
all fee payments received by him from his clients, with the
exception that he was to be allowed to retain fees generated
from relatives and close friends for certain legal work. In
exchange, the law firm supplied respondent with an office,
billing servces, and some limited secretarial assistance. The
i
Nebraska Advance Sheets
822 287 NEBRASKA REPORTS
law firm also orally agreed to cover his expenses, including,
but not limited to, bar dues, seminar fees, organization dues,
and marketing expenses.
Although respondent was an associate at the law firm, he
practiced independently, essentially sharing office space with
no direct supervision by the law firm. Because respondent
operated largely on his own under this agreement, the law firm
did not provide him with formal training or oversight related to
the handling of client funds or billing.
On or about February 7, 2011, respondent entered into a
fee agreement with a client and the client’s roofing company
for representation of the client, a roofing contractor, in a civil
action that had been filed against the client’s company in the
county court for Seward County. The suit involved a roofing
contract between the plaintiff and the client’s company for
work to be done on the plaintiff’s residence, and the plaintiff
was seeking $7,291.16 in damages. The fee agreement between
respondent and the client was for an hourly fee of $175, with
a $1,000 advance fee payment required before representation
would commence. Respondent received the $1,000 advance fee
payment on or about February 7.
The advance fee payment received by respondent from
the client should have been deposited in the law firm’s trust
account for the benefit of the client. Respondent did not
deposit the advance fee payment into the law firm’s trust
account, nor did he inform the law firm that he had received
the advance fee payment from the client. Respondent deposited
the advance fee payment into his personal account.
On or about February 7, 2011, when respondent entered
into the fee agreement with the client, respondent learned that
a hearing had been set in the client’s case for March 21 at 11
a.m., by which time the client was to have an answer filed. On
March 21 at 11 a.m., the plaintiff’s counsel appeared in court,
but respondent did not appear on behalf of his client, and no
answer had been filed. The court set the case for trial to be held
on May 2. At 11:44 a.m. on March 21, respondent filed by fax
to the court an answer on behalf of the client. A copy of the
March 21 journal entry was sent to respondent informing him
that the trial was set for May 2.
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 823
Cite as 287 Neb. 818
Between March 21 and April 25, 2011, respondent spoke
with the client about the claim against the client, but respond
ent did not conduct any formal discovery. On April 25,
respondent and the plaintiff’s attorney had a telephone con-
versation regarding a continuance of the approaching May 2
trial date. Respondent and the plaintiff’s counsel have dif-
ferent recollections about this conversation. The plaintiff’s
attorney testified by way of an affidavit which was received
in evidence at the hearing before the referee. The plaintiff’s
attorney testified that respondent had stated that he was not
ready for trial and that he intended to file a motion to con-
tinue the trial. The plaintiff’s attorney testified in his affidavit
that he informed respondent that the plaintiff would object to
a continuance and that therefore, respondent should not state
in his motion that the plaintiff’s attorney had agreed to any
requested continuance.
In contrast, respondent testified that the plaintiff’s attorney
did not have any objection to the proposed continuance but that
he did not know at the time whether the plaintiff would consent
to a continuance. Respondent testified that he understood that
the plaintiff’s attorney agreed to advise him before trial if an
objection would be lodged against respondent’s motion to con-
tinue. Respondent testified that based on this understanding,
respondent informed his client that the trial was continued and
that the client was excused from appearing on May 2.
On April 28, 2011, respondent filed a motion to continue
the trial. Respondent did not verify that the trial had been con-
tinued; nevertheless, he informed his client that the client did
not need to be in court on May 2. Respondent testified at the
hearing before the referee that since he did not hear from the
plaintiff’s attorney before trial, he assumed the trial would be
continued with a new date set by the court.
Respondent did not appear in court for the trial on May 2,
2011. Several attempts were made by court personnel to contact
respondent on the morning of May 2, but those attempts were
unsuccessful. On May 2, the court denied respondent’s motion
to continue the trial and the trial commenced. The plaintiff put
on evidence and testified. The court then entered judgment in
the full amount of the plaintiff’s prayer of $7,291.16.
Nebraska Advance Sheets
824 287 NEBRASKA REPORTS
Notice of the judgment was mailed to respondent. Respondent
did not send a copy of the judgment to his client, but respond
ent informed the client by telephone of the judgment that had
been entered against him. On May 6, 2011, respondent filed a
motion to set aside default judgment, and on May 9, a hearing
on the motion was set for June 17.
On or about May 12, 2011, the client received a copy of
the judgment from the court. The client called respondent,
and respondent told the client that he was taking care of the
matter. On May 17, the client sent a fee payment of $500
to respondent, and on June 13, the client sent another fee
payment of $500 to respondent. Respondent did not deliver
these payments to the law firm but instead kept the money.
Respondent did not inform the law firm that he had received
the payments.
A hearing was held on respondent’s motion to set aside
default judgment on June 17, 2011. The court determined that
judgment was not by default but instead was entered after an
evidentiary hearing. On June 20, the court entered a journal
entry overruling respondent’s motion, and the journal entry was
mailed to respondent. Respondent did not inform his client that
the motion was overruled, and he did not send a copy of the
journal entry to the client.
On August 9, 2011, the plaintiff’s attorney filed a motion for
order in aid of execution, requesting that respondent’s client
be ordered to appear in court on September 9 to answer ques-
tions regarding the assets of the client’s company. An order for
a debtor’s examination was issued, and the order was served
on the client on August 19. Shortly after August 19, the client
called respondent to ask about the September 9 debtor’s exami-
nation. Respondent informed the client that he did not need to
appear for the hearing.
Respondent did not appear in court on September 9, 2011,
and he did not file an objection or other pleading on behalf
of the client regarding the debtor’s examination. Based on
respondnt’s advice, the client did not appear in court for
e
the debtor’s examination. On September 9, the court made a
journal entry regarding the client’s failure to appear for the
debtor’s examination. The court issued an arrest warrant for
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 825
Cite as 287 Neb. 818
the client and set a cash bond of $1,000. A copy of the journal
entry was mailed to respondent; however, respondent did not
send a copy to the client and did not notify the client of the
entry of the arrest warrant.
On October 5, 2011, the client was arrested in McCook,
Nebraska, based on the warrant issued in Seward County. The
client posted the $1,000 cash bond and was released. He was
ordered to appear in court on October 14, and on that date, the
client and respondent appeared in court for the debtor’s exami-
nation. On October 18, respondent filed a motion to withdraw
as counsel for the client, and the motion was granted the fol-
lowing day.
With respect to a second client, on or about January 21,
2011, respondent received a payment from the second client in
the amount of $400. Respondent failed to deliver the payment
to the law firm or to notify the law firm that he had received
the payment. Respondent kept the $400.
On or about April 13, 2011, respondent received a payment
from a third client in the amount of $500. Again, respondent
failed to deliver the payment to the law firm or to inform the
law firm that he had received the payment. Respondent kept
the $500 payment.
During the time respondent was employed by the law firm,
he represented a fourth client. Respondent received various
payments from the fourth client, most of which respondent
delivered to the law firm. However, on five occasions, respond
ent failed to deliver payments from the fourth client to the law
firm or to notify the law firm that he had received the pay-
ments. The following payments totaling $1,170 were given to
respondent by the fourth client but were not delivered to the
law firm: a $300 payment on December 17, 2010; a $750 pay-
ment on April 29, 2011; a $40 payment on May 6; a $40 pay-
ment on May 31; and a $40 payment on July 25. Respondent
kept the $1,170.
On December 14, 2011, relator received a letter from
respond nt addressed to “The Nebraska Bar Association . . .
e
RE: Self Disclosure.” The letter stated in part, “I [respondent]
am writing in regards to a matter which I wanted to share
with the Nebraska Bar Association to ensure proper self
Nebraska Advance Sheets
826 287 NEBRASKA REPORTS
disclosure has been made to the Bar Association and to ensure
all proper steps were taken and accounted for.” Respondent’s
letter addressed two of the allegations which were later con-
tained in the amended formal charges. First, he disclosed his
failure to deposit the advance fee from the roofing contractor
client in the law firm’s trust account and instead deposit-
ing the fee in his personal account. Second, respondent dis-
closed his reasons for not depositing the advance fee in the
law firm’s trust account. Respondent did not disclose that he
failed to deliver the payments received from the three other
clients as described above. He also did not disclose the facts
and circumstances involving his representation of the roofing
contractor client, which led to the judgment’s being entered
against the client and the client’s arrest.
The referee determined that respondent made three false
statements in his letter. First, the referee determined that
respond nt made false statements with regard to the law firm’s
e
failing to pay respondent certain out-of-pocket expenses,
namely respondent’s 2010 Nebraska and Iowa bar dues.
Respondent did not join the law firm until October 2010,
and at that time, his 2010 Nebraska and Iowa bar dues had
been paid. Second, the referee determined that respondent
made false statements in his letter regarding his relationship
with the roofing contractor client. Respondent stated in his
letter that since he was an acquaintance of the client, he was
not required to deliver the fee to the law firm. The referee
determined that respondent was not an acquaintance of the
client and that this statement was accordingly false. Third,
the referee determined that respondent made false statements
regarding the fee arrangement he entered into with the roofing
contractor client. In the letter, respondent stated that he had a
flat fee agreement with the client, but he had actually agreed
to represent the client on an hourly basis with an advance pay-
ment of $1,000.
Respondent testified at the hearing before the referee that
the law firm had failed to pay his out-of-pocket expenses
as promised under the oral agreement between respondent
and the law firm. Respondent testified that he made repeated
requests to the law firm to pay his out-of-pocket expenses
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 827
Cite as 287 Neb. 818
and that he also requested, and the law firm failed to provide
him with, an accounting showing how fees paid to him were
calculated. Respondent testified that in order to offset amounts
owed to him by the law firm under the employment agree-
ment, he retained client fees he received from December 2010
through July 2011.
The referee determined that respondent misappropriated
$4,070 of client fees due the law firm over a 7-month period
starting on or about December 17, 2010, and ending on or
about July 25, 2011. The referee further determined that of the
$4,070 of client fees respondent misappropriated from the law
firm, he has paid the law firm $2,000, and that this payment
was made to the law firm’s trust account by respondent only
after the roofing contractor client made a demand on him and
the law firm for the $2,000 which had been paid to respondent.
The referee also determined that respondent had misappropri-
ated client fees due to the law firm at a point in time when the
law firm did not owe him money for bar dues.
The referee determined that by his actions, respondent vio-
lated conduct rules §§ 3-501.1; 3-501.3; 3-501.4(a) and (b);
3-501.15(a) and (c); and 3-508.4(a), (c), and (d); and his
oath of office as an attorney. The referee recommended that
respond nt be suspended for a period of 3 years, followed by 2
e
years’ monitored probation.
On September 19, 2013, respondent filed exceptions to the
referee’s report regarding findings of fact and conclusions of
law and the recommended discipline. Respondent stated in his
brief to this court filed October 10, 2013, that he “withdraws
exceptions 1-4 to the Referee’s report” regarding the referee
report’s findings of fact and conclusions of law, but that he still
takes exception to the referee’s recommended discipline.
ASSIGNMENTS OF ERROR
Having withdrawn his exceptions to the referee’s findings
of fact and conclusions of law, respondent generally states that
he takes exception to the referee’s recommended discipline.
Respondent specifically states he takes exception to these
discipline decisions and quotes from the referee’s report: (1)
“‘The public needs to be protected from respondent engaging
Nebraska Advance Sheets
828 287 NEBRASKA REPORTS
in the conduct found herein to be in violation of Nebraska
Court Rules of Professional Conduct and in violation of the
Oath of Office found herein in the future,’” and (2) “‘[t]he
appropriate discipline is a 3 year suspension of respondent’s
license to practice law and that respondent be able to apply for
reinstatement in accordance with the Nebraska Supreme Court
Rules of Discipline, which application shall include a showing
which demonstrates his fitness to practice law.’”
STANDARDS OF REVIEW
[1,2] A proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Tonderum, 286
Neb. 942, 840 N.W.2d 487 (2013). We reach our conclusion
independent of the findings of the referee. State ex rel. Counsel
for Dis. v. Ellis, 283 Neb. 329, 808 N.W.2d 634 (2012).
However, where the credible evidence is in conflict on a mate-
rial issue of fact, we consider 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. Id.
ANALYSIS
[3-5] Violation of a disciplinary rule concerning the prac-
tice of law is a ground for discipline, and disciplinary charges
against an attorney must be established by clear and convinc-
ing evidence. Ellis, supra. In attorney discipline cases, the
basic issues are whether discipline should be imposed and,
if so, the type of discipline under the circumstances. State ex
rel. Counsel for Dis. v. Simon, ante p. 78, 841 N.W.2d 199
(2013). We evaluate each attorney discipline case in light of its
particular facts and circumstances and consider the attorney’s
acts both underlying the events of the case and throughout the
proceeding. Ellis, supra.
In his report, the referee made findings of fact and deter-
mined that respondent violated his oath of office as an
attorney as provided by § 7-104 and the following pro-
visions of the Nebraska Rules of Professional Conduct:
§§ 3-501.1; 3-501.3; 3-501.4(a) and (b); 3-501.15(a) and (c);
and 3-508.4(a), (c), and (d). Upon our review of the record,
we agree that there is clear and convincing evidence that
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 829
Cite as 287 Neb. 818
by his conduct, respondent violated his oath of office as an
attorney and the provisions of the professional conduct rules
set forth above. As stated above, in his brief before this court,
respondent states that he withdraws his exceptions to the
referee report’s findings of fact and conclusions of law, and
that he only takes exception to the referee’s recommended
discipline. Therefore, the only issue before us is the appropri-
ate discipline.
[6,7] The goal of attorney disciplinary proceedings is not as
much punishment as determination of whether it is in the pub-
lic interest to allow an attorney to keep practicing law. Ellis,
supra. Neb. Ct. R. § 3-304 provides:
(A) Misconduct shall be grounds for:
(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) Censure, and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
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 offender generally, and (6) the offender’s pres-
ent or future fitness to continue in the practice of law. State ex
rel. Counsel for Dis. v. Tonderum, 286 Neb. 942, 840 N.W.2d
487 (2013).
[8-13] We have previously stated that in the context of
attorney discipline proceedings, misappropriation is an unau-
thorized use of client funds entrusted to an attorney, includ-
ing not only stealing, but also unauthorized temporary use
for the attorney’s own purpose, whether or not the attorney
derives personal gain therefrom. State ex rel. Counsel for
Dis. v. Crawford, 285 Neb. 321, 827 N.W.2d 214 (2013).
Nebraska Advance Sheets
830 287 NEBRASKA REPORTS
Misappropriation of client funds is one of the most serious
violations of duty an attorney owes to clients, the public, and
the courts. Id. Misappropriation by an attorney violates basic
notions of honesty and endangers public confidence in the
legal profession. Id. Absent mitigating circumstances, disbar-
ment is the appropriate discipline in cases of misappropriation
or commingling of client funds. Id. The fact a client did not
suffer any financial loss does not excuse an attorney’s misap-
propriation of client funds and does not provide a reason for
imposing a less severe sanction. Id. We do not view the misap-
propriation of funds from one’s own firm as any less dishonest
and deceptive than the misappropriation of client funds. State
ex rel. Counsel for Dis. v. Achola, 266 Neb 808, 669 N.W.2d
649 (2003).
[14] In determining the appropriate discipline of an attor-
ney, we consider the discipline imposed in cases presenting
similar circumstances. Tonderum, supra. In the referee’s report,
he relied on three cases from this court regarding an attor-
ney’s misappropriation of funds from a law firm: State ex rel.
Counsel for Dis. v. Frederiksen, 262 Neb. 562, 635 N.W.2d
427 (2001); Achola, supra; and State ex rel. Counsel for Dis. v.
Young, 285 Neb. 31, 824 N.W.2d 745 (2013).
In Frederiksen, the only alleged misconduct against Mark
D. Frederiksen was the misappropriation of funds by him from
a law firm of which he was a partner. Frederiksen apparently
became dissatisfied with his compensation, and over a period
of 3 years, he misappropriated approximately $15,000 in fees
paid directly to him by his law firm’s clients. We ordered that
Frederiksen be suspended from the practice of law for a period
of 3 years.
In Achola, like in Frederiksen, the only alleged misconduct
against George B. Achola was the misappropriation of funds
by him from a law firm of which he was an associate. Achola
wrote unauthorized checks on his law firm’s account totaling
more than $20,000 for the payment of his personal expenses.
In Achola, we stated that sufficient mitigating factors existed
to support the decision not to disbar Achola, and we ordered
that Achola be suspended from the practice of law for a period
of 3 years.
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 831
Cite as 287 Neb. 818
In Young, formal charges were filed against David James
Young alleging, inter alia, that Young had failed to deliver
payments that he had received from a client to the law firm of
which he was an associate totaling $1,500. Young filed a con-
ditional admission, and we ordered that Young be suspended
from the practice of law for a period of 20 months followed by
2 years’ monitored probation upon reinstatement.
Respondent argues that Frederiksen, Achola, and Young are
not completely relevant to the instant case, because it is not
evident in those cases that the attorneys were misappropriat-
ing client funds as a self-help remedy to offset amounts owed
to them by their respective law firms, as respondent asserts
he was doing in this case. We do not find this argument to be
persuasive. Respondent never informed the law firm that he
had received the payments from the clients or that he intended
to keep the payments as a means to offset the amount the
law firm purportedly owed to him. Respondent was misap-
propriating the payments owed to the law firm and failed to
inform the law firm that he was doing so. Respondent’s con-
duct is similar to that of the attorneys in Frederiksen, Achola,
and Young.
Respondent further contends that his failure to deposit the
$1,000 advance fee payment from the roofing client into his
law firm’s trust account or the respondent’s own trust account
is an isolated incident of failure to deposit unearned fees into
a client trust account. Respondent explains that his conduct
was due to the fact that he did not have any previous experi-
ence handling advance fee payments. Accordingly, respondent
asserts that he should receive a lesser sanction.
[15] While respondent’s failure to deposit the advance fee
payment received from the roofing client into a trust account
is the only example in the record of respondent’s misappro-
priating unearned advance fees, the record indicates several
other instances where respondent misappropriated fee pay-
ments for services that he received from clients. Specifically,
the record shows that respondent misappropriated clients’
fees 10 times over a period of 7 months totaling $4,070. We
have stated that cumulative acts of attorney misconduct are
distinguishable from isolated incidents, therefore justifying
Nebraska Advance Sheets
832 287 NEBRASKA REPORTS
more serious sanctions. State ex rel. Counsel for Dis. v. Ellis,
283 Neb. 942, 840 N.W.2d 487 (2013). Respondent admits
that he failed to deliver these payments to the law firm and
failed to notify the law firm that he had received these pay-
ments. Respondent further admits that he wrongfully resorted
to “self-help” by failing to deliver the fees to the law firm,
but he explained that his conduct was due to the fact that he
believed the law firm owed him money based on their oral
compensation agreement.
[16] We have stated that in evaluating attorney discipline
cases, we consider aggravating and mitigating circumstances.
Ellis, supra. In his report, the referee noted mitigating fac-
tors to be considered in determining respondent’s sanction.
The record contained no evidence that respondent was not in
good standing with the Nebraska State Bar Association, and
there are no prior disciplinary complaints or penalties against
respondent. The record showed that respondent has accepted
responsibility for what happened, and he cooperated through-
out the course of the disciplinary proceedings. The record con-
tains a letter of support from one attorney describing respond
ent’s professionalism and high moral character. Respondent
has contributed to the profession through his membership in
various organizations, and he has been an active member in
the community.
The referee also noted the following aggravating factors in
his report. In his “Self Disclosure” letter, respondent disclosed
that he deposited the advance fee from the roofing client in
his personal account instead of in the law firm’s trust account.
However, respondent failed to disclose in his letter that he
had failed to deposit payments he received from the second,
third, and fourth clients and failed to notify the law firm that
he had received these payments. He also failed to disclose
the facts and circumstances of his representation of the roof-
ing client which led to a judgment’s being entered against the
client. The referee stated that respondent’s representation of
the roofing client raises questions as to whether respondent is
competent to practice law. The record indicates that the mis-
appropriation of client funds was not an isolated incident and
that over a period of 7 months, respondent misappropriated
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SUNDVOLD 833
Cite as 287 Neb. 818
clients’ fees 10 different times totaling $4,070. Furthermore,
the referee stated that although it is not clear from the record
what the outcome of the roofing client’s case would have
been if respondent had properly represented the client, the cli-
ent experienced a financial loss due to respondent’s conduct,
because he was required to post a $1,000 cash bond as a result
of respondent’s advising the client he did not have to appear
at the debtor’s examination. We consider the foregoing miti-
gating and aggravating factors in determining the sanction to
be imposed.
Given the mishandling of his representation of the roof-
ing client’s case, his failure to deposit the advanced fee of
$1,000 received from the roofing client into a trust account,
and his misappropriation of client funds totaling $4,070, we
consider respondent’s conduct to be serious violations of the
rules governing attorney conduct. We, therefore, order that
respondent be suspended from the practice of law for a period
of 3 years and, upon reinstatement, be subject to 2 years of
probation, including monitoring. The monitoring shall be by
an attorney licensed to practice law in the State of Nebraska,
who shall be approved by the relator. The monitoring plan
shall include, but not be limited to, the following: During the
first 6 months of the probation, respondent will meet with and
provide the monitor a weekly list of cases for which respond
ent is currently responsible, which list shall include the date
the attorney-client relationship began; the general type of
case; the date of last contact with the client; the last type and
date of work completed on the file (pleading, correspondence,
document preparation, discovery, or court hearing); the next
type of work and date that work should be completed on the
case; any applicable statutes of limitations and their dates; and
the financial terms of the relationship (hourly, contingency, et
cetera). After the first 6 months through the end of probation,
respondent shall meet with the monitor on a monthly basis and
provide the monitor with a list containing the same informa-
tion as set forth above; respondent shall reconcile his trust
account within 10 days of receipt of the monthly bank state-
ment and provide the monitor with a copy within 5 days; and
respondent shall submit a quarterly compliance report with
Nebraska Advance Sheets
834 287 NEBRASKA REPORTS
the Counsel for Discipline, demonstrating that respondent is
adhering to the foregoing terms of probation. The quarterly
report shall include a certification by the monitor that the
monitor has reviewed the report and that respondent continues
to abide by the terms of the probation.
CONCLUSION
We find that respondent should be and hereby is suspended
from the practice of law for a period of 3 years. Should
respondent apply for reinstatement, his reinstatement shall be
conditioned upon respondent’s being on probation for a period
of 2 years, including monitoring following reinstatement, sub-
ject to the terms of probation outlined above. Respondent is
also 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 within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of suspension.
William D. Coffey, appellant, v.
P lanet Group, Inc., appellee.
___ N.W.2d ___
Filed April 4, 2014. No. S-13-194.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
2. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
3. Statutes: Judgments: Appeal and Error. The interpretation of statutes and
regulations presents questions of law. An appellate court independently reviews
questions of law decided by a lower court.
4. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an
appellate court gives words in a statute their ordinary meaning.