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Nebraska State Bar Association NE Law Express for January 18, 2008

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Case Summaries
Attorney Discipline, Failure to Communication with Client, Discipline Imposed

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This disciplinary action which grew from a failure to communicate with a personal injury client and some problems with the attorney’s trust account, leads to (with a number mitigating factors set out) a public reprimand and 18 month term of probation.

State ex rel. Counsel for Dis. v. Pinard-Cronin, 274 Neb. 851 (2008)

Supreme Court Headnotes

None

Date Filed and Case No.: January 18, 2008. No. S-07-275.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan18/s07-275.pdf

Court Appealed From: Original action.

Attorneys for the Appeal: State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator. Carol Pinard-Cronin, respondent.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Per Curiam.

Summary: On March 16, 2007, formal charges were filed by the office of the Counsel for Discipline, relator, against Carol Pinard-Cronin, respondent. Pinard-Cronin was admitted to the practice of law in the State of Nebraska in 2001 and has practiced in Douglas County, Nebraska. One of the incidents which led to charges arose from an attorney-client engagement in 2003, when Pinard-Cronin was retained by Rex Moulton to represent him in a personal injury claim arising from an automobile accident. Pinard-Cronin's practice essentially focuses on the areas of juvenile and family law, and Moulton's case was the first and only personal injury matter Pinard-Cronin has handled. On November 15, 2004, Pinard-Cronin filed suit on behalf of Moulton against Christine Roe in the district court and attempted to, but failed to serve Roe within 6 months of the filing of the lawsuit. Moulton's lawsuit against Roe was dismissed by the district court, by which time the statute of limitations on Moulton's claim had run. In April 2006, Moulton filed a grievance with the office of the Counsel for Discipline, relator, regarding Pinard-Cronin's handling of his personal injury case. After a copy of Moulton's grievance letter was sent to Pinard-Cronin, Pinard-Cronin failed to respond three times. After receiving a fourth request to respond to Moulton's grievance, Pinard-Cronin provided a response and effectively acknowledged the complaint. Moulton subsequently brought a malpractice action against Pinard-Cronin, which Pinard-Cronin settled by paying $2,500.

A second incident arose in October of 2006, Pinard-Cronin's trust account came to be overdrawn by a total of $298.78. The bank sent relator a notice of Pinard-Cronin's trust account overdrafts. On October 24, relator wrote Pinard-Cronin and asked her to provide a written explanation as to why her trust account did not have sufficient funds to honor checks presented against it. Pinard-Cronin was also asked to provide copies of all supporting documentation. On October 26 and again on November 1, 2006, Pinard-Cronin received additional notices from her bank indicating overdraws. Relator again wrote Pinard-Cronin for an explanation. On November 14, Pinard-Cronin faxed relator a letter stating that the overdrafts were caused by two clients' checks that had been subsequently dishonored by their respective banks however Pinard-Cronin did not provide relator the supporting documentation or the requested copies.

After formal charges were filed, Pinard-Cronin disputed and a referee was appointed. After a hearing, the referee found that Pinard-Cronin failed to respond to telephone calls from Moulton regarding the status of his case, failed to inform him that his lawsuit had been dismissed, and failed to protect Moulton's claim from being lost due to the running of the statute of limitations. With regard to count the trust account problems the referee found that such overdrafts occurred when checks from two of Pinard-Cronin's clients were dishonored. The referee found that Pinard-Cronin's overdraft situation was "a fleeting, isolated, one time situation, which had never occurred before, and has not occurred since." The referee further found that the overdraft situation was not the result of either Pinard-Cronin's misappropriation of client funds, willful negligence, that no client was harmed by the overdraft situation and that Pinard-Cronin had taken immediate steps to rectify the situation. Finally, the referee found that during the fall and winter of 2005 and 2006, Pinard-Cronin was encountering several "personal challenges" as two of Pinard-Cronin's children had sustained serious injuries in separate accidents, her mother had suffered a stroke, and three members of her family had died, one by suicide. The referee found that at the time of the hearing, Pinard-Cronin was seeing a mental health counselor. The referee also found that if Pinard-Cronin was allowed to continue in the practice of law, she intended to limit her practice to the areas of juvenile and family law. Fourteen letters written by juvenile court judges, lawyers, and others, were submitted to the referee, all "express[ing] a high regard for [Pinard-Cronin's] skills as a juvenile law practitioner." Also included in the exhibits was a letter from Pinard-Cronin's mental health counselor to the effect that Pinard-Cronin was making progress in her counseling and setting realistic goals to avoid a reoccurrence of the situation that had resulted in the present disciplinary proceedings. Based upon the evidence offered during the hearing, the referee found that certain of Pinard-Cronin's actions constituted a violation of the following provisions of the Code of professional responsibility: DR 1-102(A)(5) and DR 6-101(A)(1) through (3). The referee also found that certain of Pinard-Cronin's actions violated rules 1.1, 1.3, and 8.4(a) and (d) of the Nebraska rules of professional Conduct. Finally, the referee found that Pinard-Cronin's actions constituted a violation of Pinard-Cronin's oath of office as an attorney. With respect to the discipline to be imposed, the referee recommended that Pinard-Cronin receive a public reprimand and be placed on probation for a period of 18 months, during which time, Pinard-Cronin would engage and work with a practicing attorney to monitor Pinard-Cronin's practice.

Discipline imposed. The Nebraska Supreme Court considered the referee’s report and recommendation, ruled that the findings of which have been established by clear and convincing evidence, and the applicable law. Upon due consideration of the record, the Court followed the referee’s recommendation, publicly reprimanding Pinard-Cronin and placing her on probation for a period of 18 months under terms set out in the opinion.

Conclusion: Relator’s motion for judgment on the pleadings was sustained and the court found by clear and convincing evidence that Pinard-Cronin violated the rules as set out by the referee. JUDGMENT OF PUBLIC REPRIMAND.


Attorney Discipline, Failure to Respond to Disciplinary Council, Discipline Imposed

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In this disciplinary proceeding, the Nebraska Supreme Court finds and adopts the referee’s findings of misconduct where an attorney had accepted money for a representation which the attorney never filed and where the attorney did not immediately return the client’s money. Due to the attorney’s failure to respond to inquiries from the counsel for discipline the Court rejected the referee’s recommendation that the discipline be a 30 day suspension, but because of positive mitigating factors imposed a 120 day suspension.

State ex rel. Counsel for Dis. v. Zendejas, 274 Neb. 829 (2008)

Supreme Court Headnotes

Disciplinary Proceedings.

1.  A proceeding to discipline an attorney is a trial de novo on the record. ••• Violation of a disciplinary rule concerning the practice of law is a ground for discipline. ••• The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances. ••• Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances. ••• For purposes of determining the proper discipline of an attorney, the Nebraska Supreme Court considers both the attorney’s acts underlying the events of the case and throughout the proceeding. The determination of an appropriate penalty to be imposed on an attorney in a disciplinary proceeding also requires the consideration of any aggravating or mitigating factors.

2.  Proof. To sustain a charge in a disciplinary proceeding against an attorney, a charge must be supported by clear and convincing evidence.

3.  Appeal and Error. When no exceptions to the referee’s findings of fact are filed by either party in an attorney discipline proceeding, the Nebraska Supreme Court may, in its discretion, consider the referee’s findings final and conclusive.

Date Filed and Case No.: January 18, 2008. No. S-06-269.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan18/s06-269.pdf

Court Appealed From: Original action.

Attorneys for the Appeal: Kent L. Frobish for State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator. Edouardo Zendejas, respondent, pro se.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Per Curiam.

Summary: On August 3, 2006, the office of the Counsel for Discipline of the Nebraska Supreme Court filed formal charges against respondent, Edouardo Zendejas. Zendejas was admitted to the practice of law in the State of Nebraska in 1991 and is authorized to practice law in several tribal courts. The formal charges set forth that Zendejas had violated the Code of professional responsibility, in particular Canon 1, DR 1-102(A)(1) (violating disciplinary rule); Canon 6, DR 6-101(A)(3) (neglecting legal matter); Canon 9, DR 9-102(b)(3) (failing to render appropriate account records to client); and DR 9-102(b)(4) (failing to promptly pay as requested by client funds that client is entitled to receive). The formal charges also alleged that Zendejas violated Neb. Ct. R. of Prof. Cond. 8.4(d) (rev. 2005) (engaging in conduct prejudicial to administration of justice), as well as his oath of office as an attorney. In his answer, Zendejas disputed these allegations and a referee’s hearing was held. After evidence was adduced, the referee found that in November 2003, Zendejas was retained by William Zuck to represent Zuck in a postconviction action in district court (Zendejas had not previously handled a postconviction action.) Zuck paid Zendejas $14,000 but Zendejas failed to file a postconviction action. The Counsel for Discipline received a letter from Zuck regarding Zendejas’ representation, in which Zuck sought a refund from Zendejas of moneys paid. After a number of letters were exchanged between Zendejas and the Counsel for Discipline over three years (including broken promises to refund the payments to Zuck and failures by Zendejas to answer questions from the Counsel for Discipline) Zuck finally was refunded. The referee concluded Zendejas’ conduct was in violation of DR 1-102(A)(1), DR 6-101(A)(3), DR 9-102(b)(3) and (4), rule 8.4(d), and his oath as an attorney. The referee recommended that Zendejas be temporarily suspended from the practice of law for a period of 30 days. No exceptions to this report were filed and on April 18, the Counsel for Discipline filed a motion for judgment on the pleadings, requesting that this court accept the referee’s recommendation and enter judgment thereon.

What discipline did the Court impose? The Nebraska Supreme Court noted that as neither party filed any written exceptions to the referee’s report, based upon the undisputed findings of fact in the referee’s report (which they considered to be final and conclusive), the Court ruled that the formal charges were supported by clear and convincing evidence. Regarding discipline, the Court considered the applicable law as well as the referee’s report and recommendation that Zendejas should be suspended from the practice of law for 30 days. However, they disagreed as Zendejas failed for nearly 2 years to file a postconviction action on Zuck’s behalf. “Such neglect is of serious concern to this court. in addition, we express concern with Zendejas’ failure to ‘promptly pay’ to Zuck funds that Zuck was entitled to receive.” Further, Zendejas repeatedly ignored requests from the Counsel for Discipline regarding his representation of Zuck. The Court noted that they have held that an attorney’s failure to respond to inquiries and requests for information from the office of the Counsel for Discipline is considered to be a grave matter and a threat to the credibility of attorney disciplinary proceedings. The Court took note that the referee did not note any aggravating factors with regard to the imposition of discipline, but did note some factors with respect to mitigation. In particular, that Zendejas’ attitude at the hearing was one of regret and remorse. The referee also stated that Zendejas has provided commendable service to his tribal community and to the legal community. Based upon its consideration of the record in this case, the Court found that Zendejas “should be and hereby is suspended from the practice of law for a period of 120 days, effective immediately.”

Conclusion: The Nebraska Supreme Court said that the motion of the Counsel for Discipline is sustained in part and in part overruled. The Court adopted the referee’s findings of fact and concluded that Zendejas has violated DR 1-102(A)(1), DR 6-101(A)(3), and DR 9-102(b)(3) and (4) of the Code of professional responsibility, and rule 8.4(d) of the Nebraska rules of professional Conduct, as well as his oath of office as an attorney. “It is the judgment of this court that Zendejas should be and hereby is suspended from the practice of law for 120 days, effective immediately.” JUDGMENT OF SUSPENSION.


Criminal Law, Controlled Substances, Personal Use Exemption

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Here the Nebraska Supreme Court examines the “personal use exception” in a conviction for possession of a controlled substance.

State v. Bossow, 274 Neb. 836 (2008)

Supreme Court Headnotes

Statutes:

1.  A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.

2.  Appeal and Error. Statutory interpretation presents a question of law, and an appellate court resolves such issues independently of the lower court’s conclusions. ••• A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. ••• If the language of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning.

Motions to Suppress:

1.  Search Warrants: Affidavits: Appeal and Error. A trial court’s ruling on a motion to suppress, based on a claim of insufficiency of the affidavit supporting issuance of a search warrant, will be upheld unless its findings are clearly erroneous. in making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and considers it observed the witnesses.

Criminal Law:

1.  Trial. in criminal prosecutions, the withdrawal of a rest in a trial on the merits is within the discretion of the trial court.

2.  Statutes. Although penal statutes are strictly construed, they are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.

Controlled Substances:

1.  Statutes. The “personal use exception” in Neb. Rev. Stat. § 28-401(14) (Cum. Supp. 2004) only applies to “preparation” and “compounding,” but does not apply to the “production” of a controlled substance, even if that production is for personal use.

Search Warrants:

1.  Affidavits:

     a.  Probable Cause:

          i.   Proof: Time. A search warrant, to be valid, must be supported by an affidavit which establishes probable cause. probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. proof of probable cause justifying the issuance of a search warrant generally must consist of facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at that time.

          ii.  Appeal and Error. in reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a “totality of the circumstances” test. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause.

     b.  Appeal and Error. After-the-fact scrutiny by courts of the sufficiency of an affidavit used to obtain a search warrant should not take the form of a de novo review.

2.  Probable Cause: Appeal and Error. A magistrate’s determination of probable cause to issue a search warrant should be paid great deference by reviewing courts.

Date Filed and Case No.: January 18, 2008. No. S-07-099.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan18/s07-099.pdfu

Court Appealed From: District Court for Pierce County: Patrick G. Rogers, Judge.

Attorneys for the Appeal: Kate M. Jorgensen and, on brief, Andrew D. Weeks for Darren L. Bossow, appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Gerrard, J.

Summary: Darren L. Bossow was convicted in a jury trial of possession of a controlled substance with intent to manufacture. Bossow appealed, primarily arguing that the district court failed to properly instruct the jury with regard to the “personal use exception” in Neb. rev. Stat. § 28-401(14) (Cum. Supp. 2004). Bossow also asserted that the court erred in denying his motion to suppress evidence obtained from a search of his residence and statements he made to law enforcement officials, and for overruling his motion to reopen his case.

Does the “personal use exception” in § 28-401(14) apply to “production” of controlled substance? Here, Bossow was convicted of possession of a controlled substance with the intent to manufacture—specifically, production of marijuana. Bossow argued that the district court erred in not instructing the jury on the burden of proof Bossow was required to meet in order for the statutory “personal use exception” to apply. The State contends, and the Court agreed, that the “personal use exception” is not available to Bossow because Bossow was charged with the “production” of marijuana, and pursuant to the plain language of § 28-401(14), the “production” of marijuana is not included within the “personal use exception.” The Court’s analysis in this regard was guided by well-established principles of statutory interpretation. In defining the term “manufacture,” § 28-401(14) uses six specific terms to describe what types of activity are proscribed. But of those six terms, only two are excluded from the definition of “manufacture” through application of the “personal use exception” — specifically, “preparation” and “compounding” of a controlled substance. Exploring the statute, the Court summarized that the production of marijuana is plainly prohibited. Had the Legislature intended to include within the “personal use exception,” all of the activities included within the definition of “manufacture,” it could have easily done so. The Court said that the plain meaning of the “personal use exception” is to avoid finding an individual liable for the felony of manufacturing a controlled substance when that individual is already in possession of the controlled substance and is simply making it ready for use, such as rolling marijuana into cigarettes for smoking or combining it with other ingredients for use. Given the plain language of the statute, the Court said that it is evident that the Legislature intended to limit the application of the exception to only the “preparation” or “compounding” of a controlled substance. Nonetheless, Bossow contended that the “personal use exception” is applicable to this case, citing State v. Wyatt, 6 Neb. App. 586, 575 N.W.2d 411 (1998), overruled on other grounds, State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000). The Court said that contrary to Bossow’s argument, the issue in Wyatt was simply whether the defendant was required to prove that the marijuana was intended for his own “personal use.” Whether the marijuana was being “produced,” as opposed to “prepared” or “compounded,” was not at issue. The Court held that the “personal use exception” in § 28-401(14) only applies to “preparation” and “compounding,” but does not apply to the “production” of a controlled substance, even if that production is for personal use.

Was the information in a search warrant affidavit sufficiently related in time to issuance of the warrant to justify a finding of probable cause. Bossow argued that the district court erred in overruling his motion to suppress because the affidavit supporting the search warrant contained stale evidence and therefore did not establish probable cause. The Court said that the question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. In the present case, notwithstanding the passage of time between the information in the affidavit and the issuance of the warrant, the Court found that the information in the affidavit was not too stale to establish probable cause. Here, the facts justifying the issuance of the warrant were sufficiently related to the time of the issuance of the warrant to justify the district court’s finding of probable cause.

Was Bossow’s detention unreasonable seizure and statements he made to law enforcement admissible? Bossow claimed that the information provided in the affidavit did not establish probable cause to search his person and that therefore, his detention was an unreasonable seizure, and the incriminating statements he made to law enforcement after he was detained should be suppressed. The Court disagreed. As discussed above, the information in the affidavit was sufficient to establish probable cause to believe that Bossow was engaged in criminal activity—specifically, the manufacture of marijuana. And in particular, the affiant averred that individuals involved in the manufacture of marijuana may have evidence on their person, such as marijuana itself; large amounts of cash; weapons; or materials used for the production, processing, or packaging. Contrary to Bossow’s argument, the affidavit established probable cause for the search of Bossow’s residence and his person. Nor did police act unreasonably in taking Bossow into custody and transporting him to the police station. When considered collectively, the search warrant, the need to positively identify Bossow in connection with the search, and Bossow’s unlawful behavior are sufficient to establish that seizing Bossow was reasonable.

Did the district court abuse its discretion in overruling Bossow’s request to reopen his case? Finally, Bossow claimed that the district court erred in overruling his motion to reopen his case and allow him to testify regarding the burden of proof for the “personal use exception.” The withdrawal of a rest in a trial on the merits is within the discretion of the trial court and as the Court already discussed, the “personal use exception” was not available to Bossow. Further, Bossow failed, in support of his motion, claim that he intended to proffer evidence that would change that conclusion. Instead, Bossow’s motion was premised on his intent to proffer evidence relevant only to the misunderstanding of the “personal use exception” that the district court had correctly rejected.

Conclusion: For the foregoing reasons, the Nebraska Supreme Court found no merit to Bossow’s assignments of error and affirmed the judgment of the district court. AFFIRMED.