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STATE EX REL. COUNSEL FOR DIS. v. SIMON 385
Cite as 288 Neb. 385
his convictions and the finding that he is a habitual criminal.
We also affirm the sentences of 10 years for each burglary
conviction, as enhanced. However, we remand the cause to
the district court to determine whether the sentences should be
served concurrently or consecutively.
Affirmed in part, and in part
remanded for resentencing.
Heavican, C.J., not participating.
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Nick A. Simon, respondent.
___ N.W.2d ___
Filed June 27, 2014. Nos. S-12-498, S-13-1149.
Original actions. No. S-12-498 dismissed as moot. Judgment
of suspension in No. S-13-1149.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
This case is before the court on the conditional admission
filed by Nick A. Simon, respondent, on April 22, 2014, in case
No. S-13-1149. The court accepts respondent’s conditional
admission and enters an order of an indefinite suspension with
no possibility for reinstatement until June 1, 2015, and 2 years
of monitored probation following reinstatement.
FACTS
Respondent was admitted to the practice of law in the
State of Nebraska on April 14, 2009. At all relevant times,
he was engaged in the private practice of law in Omaha,
Nebraska. On December 31, 2013, the Counsel for Discipline
of the Nebraska Supreme Court filed formal charges against
respond nt in case No. S-13-1149. The formal charges consist
e
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386 288 NEBRASKA REPORTS
of nine counts against respondent, and all the counts relate to
respondent’s mishandling of immigration matters. The nine
counts generally allege misconduct, incompetence, failure to
communicate, and failure to act diligently. In the nine counts,
it was alleged that by his conduct, respondent had violated his
oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue
2012), and Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (compe-
tence); 3-501.3 (diligence); 3-501.4(a)(3), (4), and (5) (com-
munications); and 3-508.4(a) and (d) (misconduct).
By way of background, respondent was temporarily sus-
pended by this court on August 31, 2012, in case No. S-12-498.
The application for temporary suspension to which respondent
consented was based on the grievance of one client, and the
allegations relating to this one client became count I in the
formal charges filed in case No. S-13-1149, described above.
Respondent has not been reinstated since he was temporarily
suspended. By virtue of our resolution of the instant case, case
No. S-12-498 is dismissed as moot.
On April 22, 2014, respondent filed a conditional admission
pursuant to Neb. Ct. R. § 3-313 of the disciplinary rules, in
which he conditionally admitted that he violated his oath of
office as an attorney and conduct rules §§ 3-501.1; 3-501.3;
3-501.4(a)(3), (4), and (5); and 3-508.4(a) and (d). In the
conditional admission, respondent outlined his mental health
issues and steps taken to cope. Respondent knowingly chose
not to challenge or contest the truth of the matters condi-
tionally admitted and waived all proceedings against him in
connection therewith in exchange for an indefinite suspen-
sion with no possibility for reinstatement until June 1, 2015,
and 2 years of monitored probation following reinstatement.
If accepted, the monitoring shall be by an attorney licensed
to practice law in the State of Nebraska and who shall be
approved by the Counsel for Discipline. The monitoring plan
shall include, but not be limited to, the following: During the
first 6 months of 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;
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STATE EX REL. COUNSEL FOR DIS. v. SIMON 387
Cite as 288 Neb. 385
the date of last contact with the client; the last type and date
of work completed on file (pleading, correspondence, docu-
ment preparation, discovery, 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 the pro-
bation, respondent shall meet with the monitor on a monthly
basis and provide the monitor with a list containing the same
information set forth above. Respondent shall reconcile his
trust account within 10 days of receipt of the monthly bank
statement and provide the monitor with a copy within 5 days,
and respondent shall submit a quarterly compliance record to
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 probation. Finally, respondent shall
pay all the costs in this case, including the fees and expenses
of the monitor, if any.
The proposed conditional admission included a declaration
by the Counsel for Discipline, stating that respondent’s pro-
posed discipline “will protect the public, the reputation of the
Bar and the administration of justice.”
Upon due consideration, we approve the conditional admis-
sion, and we order an indefinite suspension effective immedi-
ately with no possibility of reinstatement until June 1, 2015,
and, following reinstatement, 2 years of monitored probation
subject to the terms outlined above.
ANALYSIS
Section 3-313, which is a component of our rules governing
procedures regarding attorney discipline, provides in perti-
nent part:
(B) At any time after the Clerk has entered a Formal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of the Formal Charge in exchange for a stated
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388 288 NEBRASKA REPORTS
form of consent judgment of discipline as to all or
part of the Formal Charge pending against him or her
as determined to be appropriate by the Counsel for
Discipline or any member appointed to prosecute on
behalf of the Counsel for Discipline; such conditional
admission is subject to approval by the Court. The con-
ditional admission shall include a written statement that
the Respondent knowingly admits or knowingly does
not challenge or contest the truth of the matter or mat-
ters conditionally admitted and waives all proceedings
against him or her in connection therewith. If a tendered
conditional admission is not finally approved as above
provided, it may not be used as evidence against the
Respondent in any way.
Pursuant to § 3-313, and given the conditional admission, we
find that respondent knowingly does not challenge or contest
the matters conditionally admitted. We further determine that
by his conduct, respondent violated conduct rules §§ 3-501.1;
3-501.3; 3-501.4(a)(3), (4), and (5); and 3-508.4(a) and (d);
and his oath of office as an attorney licensed to practice law
in the State of Nebraska. Respondent has waived all additional
proceedings against him in connection herewith. Upon due
consideration, the court approves the conditional admission
and enters the orders as indicated below.
CONCLUSION
Case No. S-12-498 is dismissed as moot. In this case,
S-13-1149, respondent is indefinitely suspended from the prac-
tice of law, effective immediately, with no possibility of
reinstatement until June 1, 2015. 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, subject to the
terms agreed to by respondent in the conditional admission
and outlined above. Respondent 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. Respondent
is also directed to pay costs and expenses in accordance with
Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb.
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IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 389
Cite as 288 Neb. 389
Ct. R. §§ 3-310(P) (rev. 2014) and 3-323(B) of the discipli
nary rules within 60 days after the order imposing costs and
expenses, if any, is entered by the court.
No. S-12-498 dismissed as moot.
Judgment of suspension in No. S-13-1149.
Wright, J., not participating.
In re Rolf H. Brennemann Testamentary Trust.
Kim Abbott, beneficiary, appellant, v. John E.
Brennemann et al., Trustees, appellees.
___ N.W.2d ___
Filed June 27, 2014. No. S-12-1029.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an appellate
court reviews trust administration matters for error appearing on the record. But
when an equity question is presented, appellate review of that issue is de novo on
the record.
2. Trusts: Records. Where a trustee fails to maintain proper records, all doubts
regarding his administration of the trust are resolved against him.
3. Trusts: Proof. An accounting is ordinarily an appropriate remedy for a breach of
the duty to inform and report. And if ordered, the trustees would have the burden
to prove its completeness and accuracy once questioned.
4. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding
or denying attorney fees will be upheld absent an abuse of discretion.
Petition for further review from the Court of Appeals,
Inbody, Chief Judge, and Moore and Riedmann, Judges, on
appeal thereto from the County Court for Grant County, James
J. Orr, Judge. Judgment of Court of Appeals affirmed in part
and in part reversed, and cause remanded for further proceed-
ings on the issue of attorney fees.
David A. Domina and Jeremy R. Wells, of Domina Law
Group, P.C., L.L.O., for appellant.
Neil E. Williams and Nathaniel J. Mustion, of Lane &
Williams, P.C., L.L.O., for appellees.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.