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STATE EX REL. COUNSEL FOR DIS. v. PERSON

Cite as 301 Neb. 661

State of Nebraska ex rel. Counsel for Disci

of the Nebraska Supreme Court, relator,

v. Kent E. Person, resp

___ N.W.2d ___

Filed November 30, 2018. No. S-17-556.

1. Disciplinary Proceedings. Attorney discipline cases are original proceedings before the Nebraska Supreme Court, and the court reviews a 

referee’s recommendations de novo on the record, reaching a conclusion 

independent of the referee’s findings.

2. ____. The basic issues in a disciplinary proceeding against an attorney 

are whether the Nebraska Supreme Court should impose discipline and, 

if so, the appropriate discipline under the circumstances.

3. ____. The goal in disciplining attorneys in attorney discipline proceedings is not as much punishment as it is a determination of whether it is 

in the public interest to allow an attorney to keep practicing law.

4. ____. The determination of an appropriate penalty to be imposed on 

an attorney in a disciplinary proceeding requires consideration of any 

aggravating or mitigating factors.

5. ____. The Nebraska Supreme Court considers the following factors in 

determining whether and to what extent discipline should be imposed: 

(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 and future fitness to continue in the practice of law.

Original action. Judgment of suspension.

John W. Steele, Assistant Counsel for Discipline, for 

relator.

Kent E. Person, pro se.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/14/2018 01:11 AM CST
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Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Per Curiam

INTRODUCTION

The Counsel for Discipline of the Nebraska Supreme Court 

filed formal charges against Kent E. Person, alleging ethical violations. At the hearing before the referee, Person, a 

Nebraska licensed attorney, admitted to violating his oath of 

office as an attorney, as well as Neb. Ct. R. of Prof. Cond. 

§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (communications), 3-503.3 (candor toward tribunal), and 3-508.4 

(misconduct). We order an indefinite suspension from the 

practice of law for a minimum of 2 years, followed by a 2-year 

period of probation.

BACKGROUND

Person was admitted to the practice of law in the State 

of Nebraska on June 24, 1968. Person began practicing as 

an attorney in 1970, working with his father in Holdrege, 

Nebraska.

Person was retained by complainant to administer the estate 

of complainant’s mother following her passing on November 

16, 2007. The following timeline is placed against the backdrop of repeated, and rarely answered, communications by 

complainant over the 8 years that Person was purporting to 

administer the estate of complainant’s mother.

On January 22, 2008, Person opened the estate informally 

in Phelps County Court, at which time, complainant was 

appointed as the estate’s personal representative. After no further action had taken place with regard to the estate, on June 

3, the clerk magistrate sent Person a notification reminding 

him that the estate inventory had been due on April 22. Person 

filed the initial inventory on December 1, over 7 months after 

the statutorily mandated filing date.

In connection with meeting federal tax reporting requirements, Person contacted complainant on November 25, 2008, 
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to request that he come to Person’s office to sign the “Federal 

Estate Tax Return, Form 706.” After complainant signed the 

form, Person told complainant that he, Person, would file the 

form. Person ultimately failed to do so. Person withheld from 

complainant that the form should have been filed within 9 

months of complainant’s mother’s death, a deadline that had 

passed over 3 months earlier. Person further withheld information regarding penalties and interest that would result from the 

missed deadline.

As a result of the case’s being open in excess of 18 months, 

the clerk magistrate sent a notification to Person requesting 

that a “‘status letter’” be filed with the court by August 15, 

2009. After Person failed to file the ordered status letter, the 

clerk magistrate issued a show cause order to Person, setting 

the matter for hearing on October 19. The result of the hearing is not clear from the record. On April 6, 2010, the clerk 

magistrate sent another communication to Person, seeking a 

report on the status of the estate. Receiving no reply or status 

letter, the clerk magistrate issued a second show cause order on 

May 19 to determine the reason for the lack of movement with 

regard to the estate and set the matter for hearing.

On June 7, 2010, Person filed a status letter with the Phelps 

County Court, advising that a determination of the estate’s 

assets had been difficult due to title discrepancies. Person indicated that “[w]e have prepared and filed a Federal Estate Tax 

Return in this estate.” Person went on to state that “[w]e will 

be filing an Inventory with this estate within thirty (30) days 

and will proceed to file the Inventory within thirty (30) 

days with the Internal Revenue Service on the 706 that has 

been filed and the remaining papers within thirty (30) days.” 

(Emphasis supplied.) The federal estate tax form had not been 

filed at the time Person made this statement.

Having again not heard from Person or any representative 

of the estate, the clerk magistrate sent a letter on January 13, 

2011, indicating that a status update on the case was required. 

Person again failed to respond or file a status update. On May 
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13, the clerk magistrate issued a third order to show cause, setting the matter for hearing on June 6. The result of the scheduled June 6 hearing is not clear from the record; however, on 

June 7, Person filed an amended inventory.

With the estate still open and no further action occurring 

following the June 7, 2011, filing, on January 10, 2012, the 

clerk magistrate issued a fourth order to show cause and set 

the matter for a hearing on February 8. Person failed to appear 

at that hearing. With no further action occurring in regard to 

the estate, on September 17, the clerk magistrate issued a fifth 

order to show cause, setting the matter for hearing on October 

1. The record is unclear as to the result of the September 17 

order; however, the clerk magistrate sent a sixth order to show 

cause on November 30, setting a hearing for December 17.

On December 14, 2012, complainant signed a petition for 

determination of inheritance tax and maintained that until 

that date, he was not aware he was required to pay an inheritance tax. At the hearing on December 17, Person reportedly 

indicated that he would be closing the estate by the end of 

the year.

On April 25, 2013, Person filed an amended inventory, a 

petition for determination of inheritance tax, and an inheritance tax worksheet. The petition for determination of 

inheritance tax contains the following: “The Inheritance Tax 

Worksheet states the clear market value of all assets of the 

Decedent, the proper deductions and the correct computation 

of the Nebraska Inheritance Tax, which should be determined 

and assessed as stated therein, and the Worksheet is incorporated by this reference.” (Emphasis supplied.) The inheritance 

tax worksheet referenced shows a deduction of $55,415 for 

attorney fees. During the hearing regarding discipline, the 

referee questioned Person about the attorney fees, to which 

Person responded that he had not received any payment. In 

response to further questioning, Person indicated that the 

amount listed on the worksheet was the agreed-upon fee for 

Person’s services; however, Person further indicated that he 
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had never charged complainant and that he felt he had not 

earned the fees.

In addition to the misrepresentations that Person had made 

to the probate judge stating that he had filed the tax form, 

the referee concluded that Person made a false statement in 

the petition for determination of inheritance tax and on the 

inheritance tax worksheet he filed with the court, because a 

deduction for attorney fees had been claimed but never paid by 

the estate.

On April 25, 2013, an order assessing the inheritance tax 

was filed. However, Person had not informed complainant 

that the state inheritance tax was past due and was accruing 

interest and penalties according to Neb. Rev. Stat. § 77-2010 

(Reissue 2009). Under § 77-2010, interest will accrue at a 

rate set by the Legislature under Neb. Rev. Stat. § 45-104.01 

(Reissue 2010), which was 14 percent. Additionally, according to § 77-2010, a consequence for not filing the appropriate proceeding to determine estate taxes within 12 months 

carries between “five percent per month or fraction thereof, 

up to a maximum penalty of twenty-five percent of the 

unpaid taxes due.” As a result of Person’s failing to adequately administer the estate or communicate with complainant, state taxes, including accumulated interest and penalties, 

totaled $36,052.48. The record demonstrates that complainant 

paid the tax, including interest and penalties. However, it is 

unclear from the record whether Person has fully reimbursed 

complainant.

Three additional show cause orders requiring Person’s 

appearance in court were issued on November 20, 2013; July 

11, 2014; and January 6, 2015. The January 6 order compelled 

Person to appear on February 11. Upon Person’s failure to 

appear at the scheduled hearing, the probate court appointed a 

separate attorney as special administrator for the estate.

The special administrator worked with complainant to wrap 

up the affairs of the estate. During the course of its work, 

the special administrator learned that the required tax form 
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had been completed but not filed. The special administrator 

also retained a tax attorney to resolve issues with the Internal 

Revenue Service (IRS). Despite the efforts of the tax attorney, 

who sought to abate the IRS penalties and interest in excess 

of the $800,000 owed, the IRS refused to accommodate any 

abatement. As a result, the total amount due to the IRS totaled 

$1,090,077.58 in interest and penalties.

The complaint made by complainant was forwarded to the 

Committee on Inquiry of the Sixth Judicial District on May 

13, 2017, and a disciplinary hearing was held on November 

8. After the hearing, the referee found that Person had violated §§ 3-501.1; 3-501.3; 3-501.4(a)(1) through (4) and (b); 

3-503.3(a); and 3-508.4(a), (c), and (d) of the Nebraska Rules 

of Professional Conduct. The referee weighed a number of 

considerations and determined that the appropriate discipline 

was to consist of a 30-day suspension, with reinstatement after 

the 30 days conditioned upon proof that Person had fully reimbursed the estate all interest and penalties paid by the estate to 

state and federal taxing authorities. The 30-day suspension was 

to be followed by a 1-year period of probation, during which 

Person would be required to engage an attorney, licensed to 

practice law in the State of Nebraska and approved by the 

Counsel for Discipline, to act as a practice monitor during 

Person’s probationary period.

In addition to the suspension and probationary period, 

the referee recommended that upon Person’s application for 

reinstatement, such reinstatement was to be conditioned upon 

his producing evidence that he is fit to practice law and has 

not had any additional disciplinary matters arise during his 

suspension. Further, the referee recommended that Person 

be required to comply with Neb. Ct. R. § 3-316 (rev. 2014), 

and be required 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 any order imposing costs and expenses ordered by 

the court.
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STANDARD OF REVIEW

[1] Attorney discipline cases are original proceedings before 

this court, and we review a referee’s recommendations de novo 

on the record, reaching a conclusion independent of the referee’s findings.1

ANALYSIS

[2-4] The basic issues in a disciplinary proceeding against 

an attorney are whether the Nebraska Supreme Court should 

impose discipline and, if so, the appropriate discipline under 

the circumstances.2 The goal in disciplining attorneys in attorney discipline proceedings is not as much punishment as it is 

a determination of whether it is in the public interest to allow 

an attorney to keep practicing law.3 With that in mind, the 

determination of an appropriate penalty to be imposed on an 

attorney in a disciplinary proceeding requires consideration of 

any aggravating or mitigating factors.4

[5] This court considers the following factors in determining whether and to what extent discipline should be imposed: 

(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 and future fitness to 

continue in the practice of law.5

Person admits that in this case, he violated the following 

Nebraska Rules of Professional Conduct: §§ 3-501.1 (competence); 3-501.3 (diligence); 3-501.4(a)(1) through (4) and 

1 See State ex rel. Counsel for Dis. v. Trembly, 300 Neb. 195, 912 N.W.2d 

764 (2018).

2 State ex rel. Counsel for Dis. v. Cording, 285 Neb. 146, 825 N.W.2d 792 

(2013).

3 Trembly, supra note 1.

4 State ex rel. Counsel for Dis. v. Jones, 270 Neb. 471, 704 N.W.2d 216 

(2005).

5 See Trembly, supra note 1.
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(b) (communication); 3-503.3(a) (candor toward tribunal); and 

3-508.4(a), (c), and (d) (misconduct). Person argues on appeal 

that because the violations affected only one client and were 

mitigated by other factors, at most a brief suspension was 

appropriate. Relator agreed with the referee that a 30-day suspension, followed by reinstatement conditioned on proof that 

Person had fully reimbursed the estate and a 1-year period of 

probation following that reinstatement, was appropriate.

In State ex rel. Counsel for Dis. v. Fraizer,

6

 the formal 

charges consisted of one count against Theodore Fraizer, alleging that he failed to make a timely distribution of the assets 

remaining in the trust. In that case, the decedent died on 

May 3, 2006, and Fraizer filed the estate proceeding on May 

12. In May 2009, the estate was closed, with the remaining 

assets being transferred to a trust for which Fraizer became 

trustee in 2013. The beneficiaries subsequently filed a complaint with the Counsel for Discipline alleging that Fraizer 

failed to make timely distribution of the assets remaining in 

the trust. Fraizer ultimately completed all matters related to 

the estate and trust, further agreeing to be responsible for any 

interest or penalties. Fraizer filed a conditional admission 

admitting that he violated his oath of office as an attorney 

and professional conduct rules §§ 3-501.3 and 3-508.4(a). 

Fraizer’s violations and voluntary admission resulted in a public reprimand.

In State ex rel. Counsel for Dis. v. Holthaus,

7

 the formal charges alleged that Roger Holthaus had neglected his 

responsibilities while acting as the attorney for the personal 

representative of a probate estate. It was alleged that Holthaus 

neglected his responsibilities by not timely filing pleadings 

in the probate case, not filing tax returns, not communicating 

6 State ex rel. Counsel for Dis. v. Fraizer, 297 Neb. 496, 899 N.W.2d 912 

(2017).

7 State ex rel. Counsel for Dis. v. Holthaus, 268 Neb. 313, 686 N.W.2d 570 

(2004).
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with the residual beneficiary, and mishandling estate assets. 

The residual beneficiary filed a petition to surcharge the personal representative and Holthaus, which resulted in a judgment against Holthaus. Subsequently, Holthaus filed a conditional admission in which he did not contest the truth of the 

allegations and further waived all proceedings against him in 

favor of a 6-month suspension of his license.

In State ex rel. Counsel for Dis. v. Ubbinga,

8

 we suspended 

Lori Anne Ubbinga for 1 year upon finding that she failed to 

complete the work for which she was retained, failed to communicate with her client regarding the status of her work, 

failed to provide an accounting when asked, and failed to 

cooperate with relator’s investigation. In that case, Ubbinga 

agreed to represent a client regarding child visitation. During 

the course of the representation, she failed to file motions with 

the court and did not adequately communicate with the client. 

Upon the client’s filing a complaint, Ubbinga failed to fully 

cooperate with relator and made false statements to relator. In 

that case, we noted that Ubbinga did not take responsibility for 

her actions and that her dishonest conduct raised questions as 

to her fitness to practice law.

The record shows that during the course of Person’s representation of the estate, he repeatedly failed to see that 

the estate was properly administered. The clerk magistrate 

sent numerous letters requesting a status update, which were 

largely ignored by Person. Following Person’s disregard of 

requests for status updates, the clerk magistrate issued multiple orders to show cause, which were also largely ignored by 

Person. Complainant made several attempts to communicate 

with Person, which he either ignored the attempts or provided 

little information in the way of legal counsel.

Moreover, Person misled the court by stating that he had 

filed the required tax form, when in fact he had taken no 

8 State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995, 893 N.W.2d 694 

(2017).
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such action. He later made a false statement in the petition 

for determination of inheritance tax and on the inheritance 

tax worksheet that he subsequently filed with the court. As a 

result of Person’s failure to competently administer the estate, 

it accumulated $1,090,077.58 in interest and penalties alone to 

the IRS, and $36,052.48 in interest and penalties to the state 

and county, a loss totaling $1,126,130.06.

We note that Person had been practicing law for approximately 48 years when he took on representation of complainant and that he had been subject to only one prior complaint, 

for which he was reprimanded. The length of Person’s career 

and the lack of substantial prior disciplinary history should 

be considered as a mitigating factor in this case, as it demonstrates that this is not a pattern of behavior throughout 

Person’s career. Person also maintains a good reputation in 

the community, and complainant has commented, without 

solicitation, that Person is “an honest individual. He is civicminded and has made several contributions to better our life 

in Holdrege.”

Person has indicated that he suffers from depression. Person 

indicated that due to a severe motor vehicle accident, the loss 

of his father in 2007, and his brother’s retiring from the practice of law, he was left without a support system. Person claims 

this resulted in his becoming overburdened, though he did not 

recognize it at the time. However, the record contains no medical evidence that the injuries Person received in his accident 

were direct and substantial contributing factors for his conduct. 

As such, the referee discounted those claims.

Moreover, Person’s lack of a support system in which to 

seek professional assistance and counsel with regard to decisionmaking is a cause for concern. This need for support, and 

accompanying lack of support, lead to the unavoidable concern 

for the protection of the public.

Person has not only been cooperative with the Counsel for 

Discipline, but has demonstrated remorse and admitted that he 

mishandled his representation in this case. Further, Person has 
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indicated that he intends to reimburse his client for the loss he 

caused. These factors weigh in favor of Person. However, as 

the referee correctly noted, we cannot allow members of the 

bar to buy their way out of disciplinary sanctions or give the 

public the impression that we would permit such actions.

CONCLUSION

Based on the repeated acts of indifference to the clerk 

magistrate’s communications and orders, as well as Person’s 

indifference to his responsibility to communicate with his client and his duty as an officer of the court to communicate 

honestly with the tribunal, we find that the appropriate sanction is an indefinite suspension from the practice of law for a 

minimum of 2 years, followed by a 2-year period of probation. 

At the completion of Person’s suspension, he must apply for 

reinstatement. Such reinstatement should be conditioned on 

Person’s producing evidence that he has fully reimbursed the 

estate, in addition to showing that he is fit to practice law and 

has not had any additional disciplinary matters arise during 

his suspension.

Upon reinstatement, Person shall comply with the following 

terms of monitored probation. The monitoring shall be by an 

attorney licensed to practice law in the State of Nebraska and 

approved by the Counsel for Discipline. Person shall submit a 

monitoring plan with his application for reinstatement, which 

shall include but not be limited to the following: During the 

first 6 months of probation, Person shall meet with and provide 

the monitor a weekly list of cases for which Person is responsible. The 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).
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After the first 6 months through the end of his probation, 

Person shall meet with the monitor on a monthly basis and 

provide the monitor with a list containing the same information as set forth above. Person shall work with the monitor to 

develop and implement appropriate office procedures to ensure 

protection of the clients’ interests. Person shall reconcile his 

trust account within 10 working days of receipt of the monthly 

bank statement and provide the monitor with a copy within 5 

working days.

Person shall submit a quarterly compliance report to the 

Counsel for Discipline, demonstrating adherence 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 Person continues to abide by the terms of probation. If at any time the monitor believes Person has violated 

the rules of professional conduct or has failed to comply with 

the terms of probation, the monitor shall report the same to 

the Counsel for Discipline. Person shall pay all of the costs 

in this case, including the fees and expenses of the monitor, 

if any.

Judgment of suspensi