State ex rel. Nebraska State Bar Ass'n v. Freese
259 Neb. 530, 2000 Neb. LEXIS 114, 611 N.W.2d 80 (2000)
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Rule of Law:
An attorney who represents clients with conflicting interests without providing full disclosure, engages in a sexual relationship with a client during representation, and neglects separate legal matters violates the Code of Professional Responsibility, warranting suspension from the practice of law. The severity of the sanction depends on a multi-factor analysis that includes the nature of the offense, the need for deterrence, the attorney's attitude, and other mitigating or aggravating circumstances.
Facts:
- Attorney Scott D. Freese was hired to represent a married couple, Tim and Tera Holland, in a personal injury matter resulting from Tim's motorcycle accident.
- While the personal injury case was active, Tera Holland hired Freese to represent her in a divorce from Tim Holland.
- Tim Holland signed a handwritten note consenting to Freese representing Tera, but Freese did not advise Tim of the possible effects and consequences of such consent.
- During the divorce representation, on May 11, 1997, Freese began a sexual relationship with his client, Tera Holland.
- Freese also agreed to represent Tim Holland on separate motor-vehicle-related charges until Tim learned of the sexual relationship between Freese and Tera.
- In a separate matter, Freese was appointed personal representative for the estates of two deceased sisters, Ellen and Nellie McCarthy.
- Freese failed to take meaningful action on the estates for extended periods, prompting the county court to issue multiple orders for him to show cause why the estates were not closed.
- Freese's neglect caused a two-year delay for the beneficiaries to receive their inheritance and resulted in interest penalties of $1,642.26 on unpaid inheritance taxes, which Freese personally paid.
Procedural Posture:
- The Nebraska State Bar Association (NSBA) filed formal disciplinary charges against attorney Scott D. Freese in a disciplinary proceeding.
- Freese filed an answer admitting the factual allegations but denying that his actions violated the Code of Professional Responsibility.
- A referee was appointed by the court to conduct an evidentiary hearing.
- The referee issued a report finding by clear and convincing evidence that Freese had violated multiple disciplinary rules and recommended a one-year suspension with a two-year mentorship upon reinstatement.
- Freese did not file any exceptions to the referee's report, making its findings of fact final and conclusive for the Nebraska Supreme Court's review on the matter of sanctions.
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Issue:
Does an attorney's conduct—which includes engaging in a sexual relationship with a client while representing her in a divorce against another current client, and separately neglecting two probate estates for several years—violate the Code of Professional Responsibility and warrant suspension from the practice of law?
Opinions:
Majority - Per Curiam
Yes. An attorney's conduct violates multiple provisions of the Code of Professional Responsibility and the attorney's oath of office when he engages in such conflicts of interest and neglect of duty. The court adopted the referee's findings that Freese's representation of both spouses in a divorce, coupled with a sexual relationship with one of them, constituted a violation of rules against conflicts of interest and conduct involving dishonesty. Furthermore, his failure to advance the McCarthy estates for years was a clear violation of his duty to act competently and not neglect a legal matter. While acknowledging the cumulative and serious nature of the misconduct, the court distinguished the case from others that resulted in disbarment by noting Freese’s cooperation, his admission of the relationship, and the lack of specific evidence that his client suffered psychological harm or that her legal outcomes were adversely affected. After considering all factors, the court determined that an 18-month suspension from the practice of law was the appropriate sanction.
Analysis:
This case clarifies the factors the Nebraska Supreme Court uses to determine the appropriate level of discipline for attorney misconduct, particularly in cases involving sexual relationships with clients and conflicts of interest. It establishes that while such behavior is a serious ethical breach, disbarment is not automatic and a lesser sanction like suspension may be imposed. The court's analysis emphasizes a multi-factor test that balances the severity of the misconduct against mitigating factors, such as the attorney's candor, cooperation with the disciplinary process, and the extent of demonstrable harm to the client. This decision provides a framework for future disciplinary actions, indicating that an attorney's conduct during the investigation can significantly influence the outcome.
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